STATE OF OREGON COMPENDIUM OF LAW

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1 STATE OF OREGON COMPENDIUM OF LAW Prepared by J. Richard Urrutia Williams Kastner 888 SW Fifth Avenue, Suite 600 Portland, OR (503) Updated 2012

2 PRE-SUIT AND INITIAL CONSIDERATIONS Pre-Suit Notice Requirements/Prerequisites to Suit A) Personal injury attorneys fees. The pre-suit notice requirement for attorney fees in personal injury or property damage cases where damages of ten thousand dollars ($10,000.00) or less are pled is set forth in OR. REV. STAT (1) (2011). Attorney fees may only be recovered if, prior to suit and within thirty (30) days before the commencement of the action or filing or not more than thirty (30) days after the transfer of the action, plaintiff filed a written demand for payment of plaintiff s claim on defendant. The plaintiff, however, cannot recover attorney fees if, prior to the commencement of the action or prior to the filing of a formal complaint, or not more than thirty (30) days after the transfer of the action under ORS , the defendant tendered an amount not less than the damages plaintiff was ultimately awarded. OR. REV. STAT (1) (2011). If the defendant pleads a counterclaim not to exceed ten thousand dollars ($10,000.00) and the defendant prevails in the action, the defendant can recover a reasonable amount in attorney fees for the prosecution of the counterclaim. OR. REV. STAT (2) (2011). B) Contract attorneys fees. The pre-suit notice requirement for attorney fees for any claim based on contract is governed by OR. REV. STAT (2011). This section applies only if the amount of the contract, including any interest due at the time the claim is filed, does not exceed ten thousand dollars ($10,000.00), and if the contract does not also contain a clause that authorizes or requires the reward of attorneys fees. Attorneys fees may be awarded to a plaintiff if written demand for payment was made on the defendant not less than twenty (20) days before the commencement of the action or the filing of a formal complaint or not more than twenty (20) days after the transfer of the action under OR. REV. STAT (2011). The plaintiff, however, cannot recover attorneys fees if, prior to the commencement of the action or the filing of a formal complaint, or not more than twenty (20) days after the transfer of the action under ORS , the defendant tendered to the plaintiff an amount not less than the amount ultimately awarded to the plaintiff. The provisions of this section, however, do not apply to contracts for insurance, contracts for which another statute authorizes or requires an award of attorney fees, any action for damages for breach of an express or implied warranty in a sale of consumer goods or services that is subject to OR. REV. STAT (2011), or any action against the maker of a dishonored check that is subject to OR. REV. STAT (2011). C) Public bodies. The pre-suit notice requirement for claims against public bodies and officers of public bodies is governed by OR. REV. STAT (2011). Individuals must give notice as required by the statute for sovereign immunity to be waived. Usually notice must be given within 180 days of the injury. The time period for giving notice is extended to one year in wrongful death actions. The notice requirement is satisfied by providing formal notice through the mail or by personal delivery, actual notice, by 1

3 commencing an action within the time for providing notice, or by payment of any portion of the claim by the public body. However, no notice is required if (1) the claimant was under eighteen (18) years-old when the acts or omissions giving rise to the claim occurred, the claim is against the department of Human Services or the Oregon Youth Authority, and the claimant was in custody of Department of Human Services under court order; or (2) the claim is against a private, nonprofit organization which provides public transportation. The statute of limitation for claims against public bodies is two years after the alleged loss or injury. D) Ski area operators. The pre-suit notice requirements for personal injury or wrongful death claims against a ski area operator are governed by OR. REV. STAT (2011). Notice of the skier s injury must be given to the ski area operator within 180 days of the date the skier discovers, or reasonably should have discovered, the injury. In a wrongful death action, notice of the death must be given to the ski area operator within 180 days of the death resulting from the injury. Notice must be made by registered or certified mail. When an injury results in a skier s death, the required notice may be presented to the ski area operator by or on behalf of the personal representative of the deceased or any person who may maintain a wrongful death claim. Failure to give notice bars a claim for injuries or wrongful death unless the ski operator had knowledge of the injury or death within 180 days after its occurrence, the skier or skier s beneficiaries had good cause for failing to give notice, or the ski area operator failed to inform skiers of the manners in which they are to provide notice. E) Liquor liability. The pre-suit notice requirement in liquor liability cases is set forth in OR. REV. STAT (2011). Usually, notice must be provided to the defendant within 180 days of the injury occurring or within 180 days after the date the plaintiff discovers, or reasonably should have discovered, the existence of the claim. In wrongful death cases, notice must be given within one year of the decedent s date of death or within one year from the time the person asserting the claim discovered, or reasonably should have discovered, the claim. These time limits do not include any time during which the claimant is under eighteen (18) years-old, injury or financial incapacity prevents the claimant from providing notice, or the claimant cannot determine which party is liable because the patron or guest who caused the damages has asserted a right against self-incrimination and cannot be compelled to reveal facts that would establish liability, or reveal the identity of the alleged tortfeasor. Relationship to the Federal Rules of Civil Procedure Oregon has adopted its own Code of Civil Procedure. See OR. R. CIV. P (2012). In doing so, it adopted certain portions of certain Federal Rules of Civil Procedure. Description of the Organization of the State Court System A) Structure of the Oregon court system. Oregon has three types of courts: state courts, tribal courts, and other municipal, county, and justice courts. 2

4 1) The state court system, known as the Oregon Judicial Department, consists of circuit courts and the tax court, the Court of Appeals, and the Oregon Supreme Court. See generally OREGON COURTS, OREGON JUDICIAL DEPARTMENT, (last visited June 13, 2012). The Oregon state court system also makes use of an administrative hearings division. a) Administrative hearings. Administrative hearings officers hear a variety of administrative cases. Administrative decisions may be appealed to the state court system. See generally The Office of Administrative Hearings, OREGON.GOV, (last visited Sept. 21, 2012). b) Circuit courts. Oregon circuit courts are courts of general jurisdiction. Circuit courts may hear any case, regardless of the subject matter, amount in controversy, or severity of the crime involved. See generally An Introduction to the Courts of Oregon, OREGON COURTS, OREGON JUDICIAL DEPARTMENT, (last visited June 13, 2012). c) Tax court. The tax court has exclusive jurisdiction over cases involving Oregon s tax laws. The tax court is divided into two divisions: the magistrate division and the regular division. See generally id. d) Court of Appeals. The Court of Appeals is an intermediate appellate court with jurisdiction to hear all civil and criminal appeals from the circuit courts. An exception to the court s jurisdiction exists for death penalty and tax cases. The Court of Appeals also may review most administrative decisions. See generally id. e) Supreme Court. The Oregon Supreme Court is comprised of seven elected judges and has discretionary review of cases reviewed by the Court of Appeals. In some cases, such as death penalty cases, cases involving labor law injunctions, and cases from the tax court, the Supreme Court has direct review authority and may hear cases that have not been heard by the Court of Appeals. The chief justice of the Oregon Supreme Court is the administrative head and chief executive officer of the Oregon Judicial Department. The chief justice, who is selected by the members of the Supreme Court, makes rules and issues orders to carry out the duties of the office, appoints the chief judge of the Court of Appeals and the presiding judges of the state trial courts, establishes rules and procedures for all state courts, and oversees the budget. See generally id. 2) Other courts. Municipal, county, and peace courts are locally-funded courts outside of the state-funded court system. They have limited jurisdiction to hear 3

5 cases involving violations, lesser crimes, and cases involving less serious sentences. See generally id. 3) Tribal courts. Tribal courts are also outside the state-funded court system. Tribal courts are not connected to or overseen by the Oregon Judicial Department. B) Judicial selection. 1) Circuit courts. Oregon s thirty-six (36) circuit courts are divided into twentyseven (27) judicial districts, each of which has one or more counties. The number of circuit judges in each district is determined by state law. The circuit judges are elected within the district they serve. See generally id. 2) Tax court. The tax court justice is elected in a statewide election. The tax court justice is charged with appointing a presiding magistrate and other magistrates to hear cases in the magistrate division. See generally id. 3) Other courts. The Oregon Supreme Court may appoint any elected judge or eligible person to serve as judge pro tempore of the tax court or any circuit court. To be eligible to serve as a judge pro tempore, an individual must be a resident of Oregon and a member in good-standing of the Oregon State Bar for at least three years prior to the appointment. OR. REV. STAT (2011); see also An Introduction to the Courts of Oregon, OREGON COURTS, OREGON JUDICIAL DEPARTMENT, (last visited June 13, 2012). 4) Court of Appeals. The ten justices for the Court of Appeals are elected to sixyear terms in nonpartisan, statewide elections. To be eligible to run for election, candidates must be U.S. citizens and members of the Oregon State Bar. If any justice position becomes vacant, the Oregon Supreme Court may appoint a judge from any of the state courts to fill the position on a temporary basis. See generally An Introduction to the Courts of Oregon, OREGON COURTS, OREGON JUDICIAL DEPARTMENT, (last visited June 13, 2012). 5) Supreme Court. The Oregon Supreme Court has seven justices. The justices are elected by popular vote. The seven justices choose the chief justice. If any justice position becomes vacant, the other justices may appoint any retired member of any state court to serve on a temporary basis. See generally id. C) Alternative dispute resolution. 1) Arbitration. All cases filed in Oregon s circuit courts that involve less than fiftythousand dollars ($50,000.00), as well as all domestic relations suits in which the only contested issues involve the disposition of property, are subject to mandatory 4

6 arbitration. OR. REV. STAT (2011). Mandatory arbitration, however, does not apply to appeals from county, justice, or municipal courts, or to actions in the small claims division of the circuit court. Arbitration is governed by the Uniform Arbitration Act. OR. REV. STAT , et. seq. (2011). 2) Mediation. Referral of civil cases to mediation is governed by OR. REV. STAT (2011). This statute allows the court to refer any civil case, subject to some exceptions, to mediation once all parties have appeared in the action. A case that has been referred to mediation, however, may be removed from mediation upon the filing of a written objection by any party. Service of Summons A) Individual. The service of a summons upon an individual is governed by OR. R. CIV. P. 7 (D)(2)-(3) (2012). Service methods include: (1) personal service; (2) substituted service, which requires that true copies of the summons and complaint be delivered to a person fourteen (14) years or older residing in the home or usual place of abode of the person to be served; and (3) office service, which requires that true copies of the summons and complaint be left with a person who is apparently in charge working at the office of the person to be served during normal working hours. Substituted service and office service also require that a copy of the summons and complaint be mailed by first class mail to the person to be served as soon as is reasonably possible, together with a statement of the time, date, and place at which substitute service was made. B) Public bodies. The service of a summons upon a public body is governed by OR. R. CIV. P. 7(D)(3)(h). A public corporation, county, incorporated city, school district, commission, board, or agency may be served by personal or office service. Service may be made upon any officer, director, managing agent, or attorney within that public body. C) Corporations, limited partnerships, or limited liability companies. The service of a summons upon a domestic or foreign corporation or limited partnership is governed by OR. R. CIV. P. 7(D)(3)(b)-(d). The primary service methods are personal or office service upon a registered agent, officer, director, general partner, manager for the limited liability company, member of the limited liability company (in the case of member-managed limited liability companies), or managing agent of the corporation or limited partnership, or personal service upon any clerk on duty in the office of a registered agent. If a registered agent, officer, director, general partner, manager for the limited liability company, member of the limited liability company (in the case of member-managed limited liability companies), or managing agent cannot be found in the county where the action is filed, true copies of the summons and complaint may be served by alternative methods. Alternative service methods include: 1) Substituted service upon a registered agent, officer, director, general partner, manager for the limited liability company, member of the limited liability company (in the case of member-managed limited liability companies), or managing agent; 5

7 2) Personal service on any clerk or agent of the corporation or limited partnership who may be found in the county where the action is filed; 3) Mailing copies of the summons and complaint to the office of the registered agent, or to the last registered office of the corporation, limited partnership, or limited liability company, if any, as shown by the records on file in the office of the Secretary of State; or if the corporation, limited partnership, or limited liability company is not authorized to transact business in [Oregon] at the time of the transaction, event, or occurrence upon which the action is based occurred, to the principal office or place of business of the corporation, limited partnership, or limited liability company, and in any case to the address the use of which the plaintiff knows or has reason to believe is most likely to result in actual notice ; or 4) Upon the Secretary of State in the manner provided in OR. REV. STAT or (2011). D) Waiver. Waiver of service was previously governed by OR. REV. STAT (2007). That statute was repealed in E) State. The service of a summons upon the state is governed by OR. R. CIV. P. 7 (D)(3)(g)(2012). Copies of the summons and complaint may be left at the Attorney General s office with a deputy, assistant, or clerk, or the summons and complaint may be personal served upon the Attorney General. F) General partnerships and limited liability partnerships. The service of a summons upon a general partnership or limited liability partnership is governed by OR. R. CIV. P. 7(D)(3)(e). A summons may be served on a partnership by personal service upon a partner or any agent authorized to receive such summons. G) Unincorporated association. The service of a summons upon an unincorporated association subject to suit under a common name is governed by OR. R. CIV. P. 7(D)(3)(f). A summons may be served upon an unincorporated association by personal service upon an officer, managing agent, or agent authorized to receive service of summons for the unincorporated association. H) Vessel owners and charters. The service of summons upon vessel owners and charterers is governed by OR. R. CIV. P. 7(D)(3)(i). A summons may be served upon a foreign steamship owner or steamship charterer by personal service upon a vessel master employed by the owner or charterer, or any agent authorized to provide services to a vessel calling at a port in Oregon or a port in Washington on the portion of the Columbia River forming a common boundary with Oregon. Statutes of Limitations A) Non-Oregon courts. The statute of limitations for actions upon judgments or decrees of U.S. courts, or states or territories within the U.S. is set forth in OR. REV. STAT (2011). Any such action must be commenced within ten (10) years. 6

8 B) Contracts. The statute of limitations applicable to actions brought against certain contracts is governed by OR. REV. STAT (2011). Subject to some exceptions, actions based upon a contract must be commenced within six (6) years. C) Garnishees. The statute of limitations applicable to proceedings against garnishees are governed by OR. REV. STAT (2011). Proceedings against a garnishee must be commenced within one (1) year of the delivery of the writ of garnishment. In the event that the writ of garnishment is delivered to the personal representative of an estate, the proceeding against the garnishee must be commenced within one (1) year after entry of a judgment of final distribution for the estate. D) Sheriffs. The statute of limitations applicable to actions brought against sheriffs or constables based upon actions in their official capacity and by virtue of their office or by the omission of an official duty is governed by OR. REV. STAT (2011). Such action shall be commenced within three (3) years. E) Intentional torts. The statute of limitations applicable to actions for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in Chapter 12 of the Oregon Revised Statutes, are governed by OR. REV. STAT (1) (2011). These actions must be commenced within two (2) years. In an action at law based upon fraud or deceit, the limitations period runs from the time the fraud or deceit is discovered. F) Forfeiture or penalty. The statute of limitations applicable to an action upon a statute for a forfeiture or penalty to the state or county is governed by OR. REV. STAT (2) (2011). These actions must be commenced within two (2) years. G) Overtime or liquidated damages. The statute of limitations applicable to actions for overtime or premium pay or for penalties or liquidated damages for failure to pay overtime or premium pay are governed by OR. REV. STAT (3) (2011). These actions must be commenced within two (2) years. H) Medical treatment. The statute of limitations applicable to actions to recover damages for person injury arising from any medical, surgical, or dental treatment, omission, or operation are governed by OR. REV. STAT (4) (2011). These actions must be commenced within two (2) years from the date when the injury was discovered or reasonably should have been discovered. I) Nuclear incidents. The statute of limitations applicable to actions arising from nuclear incidents involving the release of radioactive material, excluding releases from acts of war, that cause bodily injury, sickness, or death are governed by OR. REV. STAT (5) (2011). Such actions shall be commenced within two (2) years from the time the injured person discovers, or reasonably should have discovered, the injury and the causal connection between the injury and the nuclear incident, or, within two (2) years 7

9 from any substantial change in the degree of injury to the person arising out of the nuclear incident. J) Child abuse. The statute of limitations applicable to actions based on conduct that constitutes child abuse or conduct that includes knowingly allowing, permitting, or encouraging child abuse while the person who is entitled to bring the action is under eighteen (18) years of age are governed by OR. REV. STAT (2011). Such actions generally must be commenced before the person attains forty (40) years of age, or if the person has not discovered the causal connection between the injury and the child abuse, nor in the exercise of reasonable care should have discovered the causal connection between the injury and child abuse, not more than five (5) years from the date the person discovers or in the exercise of reasonable care should have discovered the causal connection between the child abuse and the injury, whichever period is longer. K) Escape of prisoners. The statute of limitations applicable to an action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process, or an action for libel or slander are governed by OR. REV. STAT (2011). Such actions must be commenced within one (1) year. L) Libel or slander. The statute of limitations applicable to an action for libel or slander are governed by OR. REV. STAT (2011). Such actions must be commenced within one (1) year. M) Rental agreements. The statute of limitations applicable to actions arising under rental agreements or Chapter 90 of the Oregon Revised Statutes are governed by OR. REV. STAT These actions must be commenced within one (1) year. N) Penalties. The statute of limitations applicable to an action upon a statute for a penalty given in whole or in part to a person who will prosecute for the same is governed by OR. REV. STAT (2011). Such action must be commenced within one (1) year after the commission of the offense. If the action is not commenced within one (1) year by a private party, it may be commenced within two (2) years thereafter, on behalf of the state, by the district attorney of the county where the offense was committed or is triable. Id. O) Construction. The statute of limitations applicable to an action against a person, whether in contract, tort, or otherwise, arising from the construction, alteration, or repair of any improvement to real property or the supervision or inspection thereof, or from such person having furnished the design, planning, surveying, architectural, or engineering services for such improvement is governed by OR. REV. STAT (1) (2011). These actions must be commenced within the applicable limitations period otherwise established by law. P) Architecture. The statute of limitations applicable to an action against a person for the practice of architecture, landscape architecture, or engineering, seeking damages for personal injury, harm to property, or harm to an interest in property, regardless of legal theory, arising from the construction, alteration, or repair of any real property 8

10 improvement is governed by OR. REV. STAT (2) (2011). Such action must be commenced within ten (10) years from substantial completion or abandonment of the construction, alteration, or repair. Q) Other actions. The statute of limitations applicable to actions for causes not otherwise provided for is governed by OR. REV. STAT (2011). Such action must be commenced within ten (10) years. R) Tolling. Suspension of the applicable statute of limitations for actions that could be brought by a person under a disability is governed by OR. REV. STAT (2011). Being under the age of majority and insanity are disabilities under Oregon law. Generally, if a person entitled to bring an action is either under eighteen (18) year of age at the time the cause of action accrues or is insane, the statute of limitations for commencing the action is tolled until the person reaches eighteen (18) years of age or is no longer insane. The time for commencing the action, however, may not be extended for more than five (5) years or for more than one (1) year after the person attains eighteen (18) years of age or is no longer insane, whichever occurs first. In addition, with respect to minority as a disability, if the child s cause of action is tolled, then a cause of action for recovery of damages for medical expenses incurred by a parent, guardian, or conservator of the child is tolled for the same period if the medical expenses resulted from the same wrongful conduct that is the basis of the child s cause of action. S) Effect of death. The effect of death on the applicable statute of limitations is governed by OR. REV. STAT (2011). If a person entitled to bring an action dies before the expiration of the applicable statute of limitations period, that person s personal representative may commence an action after the expiration of the statute of limitations period but within one (1) year after the death of the person. If a person against whom an action may be brought dies before the expiration of the statute of limitations period, suit may be brought against that person s personal representative after expiration of the statute of limitations period but within one (1) year after the person s death. T) Effect of attorney s death. The effect of an attorney s death on the limitations period is governed by OR. REV. STAT (2011). Notwithstanding the expiration of the limitations period established by statute, a party may commence an action within 180 days of the attorney s death if the attorney had agreed to represent the person in the action, the attorney-client relationship is evidenced in a writing prepared by the attorney, and the attorney died before the expiration of the statute of limitations. U) Trusts. The statute of limitations applicable to an action against a trustee of an express trust whether in contract, tort, or otherwise, arising from any act or omission of the trustee constituting a breach of duty is governed by OR. REV. STAT (2011). These actions must be commenced within six (6) years from the date the act or omission is discovered or in the exercise of reasonable diligence should have been discovered. However, such actions must be commenced no later than ten years from the date of the act or omission complained of, or two (2) years from the termination of any fiduciary account established under the trust, whichever date is later. 9

11 V) Breast implants. The statute of limitations applicable to an action for death, injury, or damage resulting from breast implants containing silicone, silica, or silicon as a component is governed by OR. REV. STAT (2011). Such actions must be commenced no later than two (2) years after the date on which the plaintiff discovered, or should have discovered: (1) the death, specific injury, disease, or damage for which the plaintiff seeks recovery; (2) the tortuous nature of the act or omission of the defendant that gives rise to a claim; and (3) all other elements required to establish plaintiff s claim. W) Sidesaddle gas tanks. The statute of limitations applicable to a civil action against a manufacturer of pickup trucks for injury or damages resulting from a fire caused by the rupture of a gas tank mounted outside of the side rails of the frame of a pickup truck ( sidesaddle gas tank ) is governed by OR. REV. STAT (2011). Such action must be commenced no later than two years after the injury or damage occurs. A civil action against a manufacturer of pickup trucks for death resulting from a fire caused by the rupture of a gas tank mounted outside of the side rails of the frame of a pickup truck must be commenced no later than three years after the death. X) Surveying. The statute of limitations applicable to an action against a person for the practice of land surveying to recover damages for personal injury, property damage, or harm to an interest in property is governed by OR. REV. STAT (2011). Such action must be commenced within two (2) years after the injury or damage is discovered or should have been discovered. Y) Power lines. The statute of limitations applicable to an action against a manufacture of extendable equipment for death, injury, or other damage arising out of contact with power lines is governed by OR. REV. STAT (2011). Actions for death must be commenced within three years after the death. Actions for injury or other damage must be commenced not later than two years after the injury or other damage occurs. These actions are not subject to some statutes of repose. Z) Wrongful death. The statute of limitations applicable to an action for wrongful death is governed by OR. REV. STAT (2011). Actions for wrongful death shall be commenced within three (3) years after the injury causing the death is, or reasonably could have been, discovered. In no event can a wrongful death action be brought later than the earliest of three (3) years or the longest other period for commencing an action under a statute of ultimate repose. Wrongful death claims against public bodies and officers of public bodies are also subject to the pre-suit notice requirement set forth in OR. REV. STAT (2) (2011). To maintain a wrongful death claim against a public body or an officer of a public body, notice of the claim must be given within one (1) year after the alleged loss or injury. AA) Product liability. The statute of limitations applicable to a product liability action for personal injury or property damage is governed by OR. REV. STAT (2) (2011). Such action must be commenced not later than the earlier of two (2) years after the 10

12 plaintiff discovers, or reasonably should have discovered, the injury or damage and the causal relationship between the injury or damage and the product or the defendant s conduct, or, ten years after the date on which the product was first purchased for use or consumption. Product liability actions against public bodies and officers of public bodies are also subject to the pre-suit notice requirement set forth in OR. REV. STAT (2) (2011). To maintain a product liability action against a public body or an officer of a public body, notice of the claim must be given within 180 days of the alleged loss or injury. BB) CC) DD) Product liability. The statute of limitations applicable to a product liability action for death is governed by OR. REV. STAT (3) (2011). Such action must be commenced not later than the earlier of the limitations period provided for wrongful death actions or ten years after the date on which the product was first purchased for use or consumption. Product liability actions for death against public bodies and officers of public bodies are also subject to the pre-suit notice requirement set forth in OR. REV. STAT (2) (2011). To maintain a product liability action for death against a public body or an officer of a public body, notice of the claim must be given within one year of the alleged loss or injury. Asbestos. The statute of limitations applicable to a product liability action for damages resulting from asbestos-related disease is governed by OR. REV. STAT (2011). Such action shall be commenced not later than two (2) years after the date on which the plaintiff discovered, or should have discovered, the disease and cause of it. Other statutes of limitations. There are many other statutes of limitations contained in the Oregon Revised Statutes. The limitations period must be evaluated for each case. Statute of Repose A) Medical treatment. The statute of repose applicable to medical, surgical, or dental treatment actions is governed by OR. REV. STAT (4) (2011). Actions to recover personal injury damages arising from any medical, surgical, or dental treatment, omission, or operation must be commenced within five (5) years from the date of treatment, omission, or operation. The medical malpractice statute of ultimate repose is absolute in the absence of fraud, deceit, or a misleading representation. A statutory exception applies if there was fraud, deceit, or a misleading representation. B) Negligence. The statute of repose applicable to actions for negligent injury to persons or property is governed by OR. REV. STAT (2011). In no event shall any action for negligent injury to the person or property of another be commenced more than ten years from the date of the injury or omission. C) Construction. The statute of repose applicable to actions arising from the construction, alteration, or repair of an improvement to real property is governed by OR. REV. STAT (1) (2011). An action against a person, whether in contract, tort, or otherwise, arising from such person having performed, supervised, designed, or engineered the 11

13 construction, alteration, or repair of any improvement to real property must be commenced within ten (10) years from substantial completion or abandonment of the construction, alteration, or repair. D) Architecture. The statute of repose applicable to an action against a person for the practice of architecture, landscape architecture, or engineering, seeking damages for personal injury, harm to property, or harm to an interest in property that arises from the construction, alteration, or repair of an improvement to real property is governed by OR. REV. STAT (2) (2011). Such action must be commenced within ten (10) years from substantial completion or abandonment of the construction, alteration, or repair. E) Nuclear incidents. The statute of repose applicable to an action arising from a nuclear incident is governed by OR. REV. STAT (3) (2011). In no event shall any such action be commenced more than thirty (30) years from the date of the nuclear incident. F) Trusts. The statute of repose applicable to an action against a trustee of an express trust is governed by OR. REV. STAT (2011). No action, whether in contract, tort, or otherwise, arising from any act or omission of the trustee constituting a breach of duty shall be commenced more than ten (10) years from the date of the act or omission complained of or two (2) years from the termination of any fiduciary account established under the trust, whichever is later. G) Land surveying. The statute of repose applicable to an action relating to land surveying is governed by OR. REV. STAT (2011). In no event may an action arising out of a survey be commenced more than ten (10) years after the date on which any map prepared by the land surveyor is filed. If no map is filed, an action may in no event be brought more than ten (10) years after the completion of work on the survey. H) Product liability. The statute of repose applicable to product liability actions is governed by OR. REV. STAT (1) (2011). A product liability action may not be brought for any death, personal injury, or property damage caused by a product that occurs more than eight (8) years after the date on which the product was first purchased for use or consumption. OR. REV. STAT (2011) (asbestos-related disease damages) and (1)-(4) (2011) (breast implant injuries) are the only exceptions to this statute of repose. Venue Rules A) Venue is governed by OR. REV. STAT (2008). 1) For the following actions and suits venue is proper in the county in which the subject of the action or suit, or some part thereof, is situated: a) Actions for the recovery of real property, or an estate or interest therein, or for injuries to real property; 12

14 b) Actions for the recovery of any personal property distrained for any cause; c) Suits for the partition of real property; d) Suits for the foreclosure of a lien or mortgage upon real property; and e) Suits for the determination of an adverse claim, estate, or interest in real property, or the specific performance of an agreement in relation thereto. OR. REV. STAT ) For the following actions, venue is proper in the county where the cause, or some part of it, arose: a) For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake, river or other stream of water, situated in two or more counties, the action may be commenced and tried in any county bordering on such lake, river or stream, and opposite the place where the offense was committed; b) Against a public officer or person specially appointed to execute the duties of the public officer for an act done by the officer or person in virtue of the office of the public officer; or against a person who, by the command of the public officer, or in aid of the public officer, shall do anything touching the duties of such officer. OR. REV. STAT ) For any suit against any department, official, officer, commissioner, commission, or board of the state, venue is proper in the county wherein the cause of the suit, or some part thereof, arose. OR. REV. STAT ) All other actions shall be commenced either in the county in which at least one defendant resides at the commencement of the action or in the county where the cause of action arose. OR. REV. STAT a) A party is a resident of each county the party resides in. If no defendant resides in Oregon, the action may be commenced in any county. b) Corporations. An incorporated corporation, limited partnership, or foreign corporation authorized to do business in Oregon is a resident of each county where regular, sustained business activity is conducted and each county where the corporation or partnership has a business office or any agent authorized to receive process. 13

15 c) Foreign corporations. Foreign corporations and partnerships not authorized to do business in Oregon are not a resident of any county. d) Partnerships. Partnerships and other unincorporated association are residents of any county where a person who could be served with a summons for the partnership or association resides. B) Change of venue. Change of venue is governed by OR. REV. STAT (2011). In Oregon, there are discretionary and nondiscretionary grounds for a change of venue. Discretionary grounds upon which a judge may grant a motion for change of venue include when it is necessary for the convenience of the parties or witnesses, and when there is a risk of prejudice on the part of the judge or local witnesses. A judge must grant a change of venue motion when there are no statutory grounds for hearing the case in the county and when the judge is interested in the action or is related by blood or marriage of at least the third degree to the nonmoving party. C) Forum non conveniens. Courts in Oregon have assumed that the doctrine of forum non conveniens is a basis for the court to decline to exercise jurisdiction even though personal jurisdiction exists and venue within the jurisdiction is proper. See Maricich v. Lacoss, 204 Or. App. 61 (2006). The doctrines adoption and applicability, however, has not been definitively ruled on by the Oregon Supreme Court. In deciding whether to decline to exercise jurisdiction on the grounds of forum non conveniens, the court will consider whether trying the case elsewhere would best serve the convenience of the parties and the ends of justice. Id. Comparative Fault/Contributory Negligence NEGLIGENCE A) Oregon is a modified contributory fault jurisdiction. OR. REV. STAT (2011). A claimant s contributory negligence does not bar recovery in an action if the claimant s fault is not greater than the combined fault of all other persons whose conduct is to be compared. The claimant s fault is compared to the fault of any party against whom recovery is sought, the fault of any third-party defendants who are liable to the claimant, and the fault of anyone who has settled with the claimant. Excluding parties with whom the claimant has settled, the fault of any person immune from liability, any person not subject to the court s jurisdiction, and any person not subject to the action because the claim is barred by the statute of limitations or the statute of ultimate repose are not considered in the contributory negligence analysis. No recovery is allowed if the claimant s fault is greater than the combined fault of all other persons whose conduct is compared. If the fault attributable to the claimant is less than the fault of the other parties, the claimant may recover, but the claimant s damages are diminished in the proportion to its percentage of attributable fault. 1) The defendant bears the burden of proof in establishing the degree of fault attributable to any third-party defendants and any party that settled with the 14

16 claimant. The defendant also bears the burden of proving that the fault of any third-party defendant or settling party contributed to the claimant s injury or death. Id. B) Gross negligence. Under Oregon's comparative negligence statute, a plaintiff s comparative negligence may not be used to offset a defendant's gross negligence. See DeYoung v. Fallon, 104 Or. App. 66, 70-71, 798 P.2d 1114 (1990); Ryan v. Foster & Marshall, Inc., 556 F.2d 460 (9th Cir. 1977). C) Implied assumption of the risk. The doctrine of implied assumption of risk has been abolished in Oregon. Blair v. Mt. Hood Meadows Dev. Corp., 291 Or. 293, 301, 630 P.2d 827 (1981). Despite the abolition of the implied assumption of risk defense, a defendant may be able to reduce or remove liability under the contributory fault scheme by showing that the plaintiff encountered a risk or danger voluntarily and unreasonably. Id.; Vanderveere-Pratt v. Portland Habilitation Ctr., Inc., 242 Or. App. 554, , 259 P.3d 9 (2011). Exclusive Remedy Workers Compensation Protections A) In Oregon, workers compensation protections are governed by Chapter 656 of the Oregon Revised Statutes, otherwise known as the Workers Compensation Law. The purpose of Oregon s Workers Compensation Law is to maintain certain benefits for employees, to provide a fair and just administration system that reduces litigation, and to limit the liability of a complying employer. See OR. REV. STAT (2) (2011). B) Exclusivity. The Worker s Compensation Law provides the exclusive remedy to a subject worker and the worker s beneficiaries for injuries that arise out of and are sustained in the course of employment. OR. REV. STAT (2011). Instead of damages, the law provides recovery schedules for benefits and compensation. OR. REV. STAT (2011). 1) Non-compensable injuries. Despite the exclusive remedy provision, a worker may pursue a negligence action arising from a work-related injury if the injury was found to be noncompensable under the Workers Compensation Law. OR. REV. STAT (2011). An injury may be found to be noncompensable if the worker failed to establish that a work-related incident was a major contributing cause of the injury. See OR. REV. STAT (2011). C) Exceptions to exclusivity. Oregon has several statutory exceptions to the exclusive remedy provision of the Workers Compensation Law. 1) Third parties. A statutory exception exists for workers injured by a third party not in the same employ as the worker. OR. REV. STAT (2011). Under this exception, a worker who is injured by a third party may elect to pursue a claim against a third party, as long as the third party is not the employer or a subject worker of the employer. If the employee or the employee s beneficiaries 15

17 elect not to proceed against the third party, the worker s cause of action is assigned to the paying agency (generally the insurer), and the paying agency may bring action against the third party in the name of the injured worker or beneficiaries. OR. REV. STAT (1) (2011). If the worker successfully pursues a claim against a third-party, the paying agency is entitled to reimbursement. OR. REV. STAT (1)(c) (2011). 2) Intentional injuries. Oregon also has a statutory exception to the exclusive remedy provision for intentional injuries to the employee. OR. REV. STAT (2011). Under this exception, a worker can pursue a remedy under the act and also may bring suit against the employer if the worker was injured as a result of the deliberate intention of the employer. If the worker is successful in a suit against the employer, the amount of damages the worker may recover from the employer are reduced by the amount the employee was entitled to receive under the act. 3) Other exceptions. Additional exceptions to employer immunity under the act exist. For example, an employer is not immune from suit when the worker s injury was proximately caused by willful and unprovoked aggression by the person who is otherwise exempt. OR. REV. STAT (3)(a) (2011). Employers also are not immune from suit when the worker s injury was proximately caused by the employer s failure to comply with a red warning or when the employer has failed to comply with the Workers Compensation Law. Id.; OR. REV. STAT (2011). D) Subject workers. The Workers Compensation law applies to all employers with one or more subject employees. OR. REV. STAT (2011). All workers are subject workers unless specifically exempted from the act. OR. REV. STAT (2011). Exempt workers include, but are not limited to, domestic servants, gardeners, maintenance workers, repair workers, and other such workers in private households, casual workers where the employment is not in the ordinary course of business of the employer, some firefighters and police officers, and some sole proprietors. Id. Additional groups of exempted workers are set forth in OR. REV. STAT E) Methods of insurance. To comply with the act, subject employers must qualify as either a carrier-insured employer or a self-insured employer. OR. REV. STAT (1) (2011). A carrier-insured employer is an employer that has a guaranty contract that is issued by a guaranty contract insurer. OR. REV. STAT (1)(a) (2011). A selfinsured employer is an employer that personally assumes the responsibility of compensating workers for compensable injuries. OR. REV. STAT (1) (2011). Indemnification A) Indemnity entirely shifts a plaintiff s loss from one defendant to another person by reason of some legal obligation to pay damages originating from the negligence of another. Piehl v. Dalles Gen. Hosp., 280 Or. 613, 621, 571 P.2d 149 (1977). There are two 16

18 categories of indemnification in Oregon: contractual indemnity and common-law indemnity. B) Contractual indemnity. Contractual indemnity is based upon an express indemnification provision in a contract. 1) Duty to defend. In an action on an indemnity agreement, the standard for determining the duty of a contractual indemnitor to defend an indemnitee is the same as an insurer s duty to defend an insured. Nat l Union Fire Ins. Co. of Pittsburgh Pa. v. Starplex Corp., 220 Or. App. 560, 573, 188 P.3d 332 (2008). 2) Inquiry. A court s inquiry into the parties intent regarding a contractual provision that purports to immunize a party from the consequences of its own tortious conduct focuses not only on the language of the contract, but also on the possibility of a harsh or inequitable result that would fall on one party by immunizing the other party from the consequences of the party's own conduct. Id. at 576. As a result, Oregon courts have recognized that there are some limits on a party s ability to obtain indemnity protection against liabilities for its own conduct. See Waggoner v. Or. Auto. Ins. Co., 270 Or. 93, 96-97, 526 P.2d 578 (1974). For example, a party may obtain indemnity protection for liabilities resulting from the party s own negligent conduct, but not for the conduct that is wanton or criminal in nature. Id. at 97. C) Common-law indemnity. Common-law indemnity is based upon the principles of an implied contract. Common-law indemnity in Oregon, however, is not strictly based on active/passive or primary/secondary principles. A party asserting an entitlement to common-law indemnity must prove three elements: (1) that he has discharged a legal obligation owed to a third party; (2) that the defendant was also liable to the third party; and (3) that as between the claimant and the defendant, the obligation ought to be discharged by the latter. The last requirement means that, although the claimant must have been legally liable to the injured third party, his liability must have been secondary or his fault merely passive, while that of the defendant must have been active or primary. Fulton Ins. v. White Motor Corp., 261 Or. 206, 210, 493 P.2d 138 (1972). Joint and Several Liability A) Several liability. Several liability refers to liability that is separate and distinct from another's liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties. Kerry v. Quicehuatl, 213 Or. App. 589, 594, 162 P.3d 1033 (2007). In Oregon, liability for tort damages is generally several only, not joint. OR. REV. STAT (1) (2011). Joint liability was eliminated by the state legislature in the 1995 tort reform. B) Calculation. In order to determine the amount of damages owed to the plaintiff by each defendant, the trier of fact first determines how much the plaintiff would be owed if the plaintiff had no attributable share of fault. Each defendant s share of damages is then 17

19 calculated by multiplying the defendants respective percentages of fault by the total amount of plaintiff s damages, with no reduction for settlement or contribution. The several liability of each party is then set out by the court. OR. REV. STAT (2011). C) Uncollectible judgments. A defendant s share of liability may be reallocated to other parties if the court determines that all or any part of that defendant s share is uncollectible. OR. REV. STAT (3) (2011). D) Contribution. The right of contribution among joint tortfeasors is governed by OR. REV. STAT (2011). In Oregon, a right of contribution exists among joint tortfeasors. The right of contribution, however, exists only if one tortfeasor has paid more than his proportional share of common liability. The right of contribution allows a defendant to recover amounts paid to the plaintiff in excess of that defendant s share of common liability from the other liable defendants. E) Covenant not to sue. A covenant not to sue or not to execute releases the tortfeasor to whom it is given from all liability for contribution from any other tortfeasors. OR. REV. STAT (1)(b) (2011). 1) Notice. Notice of a covenant not to sue or not to execute must be given to all other persons against whom the plaintiff has asserted a claim. OR. REV. STAT (2) (2011). F) Settled parties. Parties that have settled with the plaintiff have no right of contribution from other defendants whose liability is not extinguished by the settlement. In order for a settling party to have a right of contribution from the other defendants, the settling defendant must pay all of the common liability. See Aetna Cas. & Surety Co. v. OHSU, 310 Or. 61, n.4, 793 P.2d 320 (1990). A settling defendant, however, does have a right of contribution from the other tortfeasors if the settling defendant paid more than his share of common liability, the settlement extinguished the liability of all other defendants, and the amount of the settlement does not exceed what is reasonable. Jensen v. Alley, 128 Or. App. 673, 677 n.3, 877 P.2d 108 (1994) (citing ORS , now numbered ORS ). Strict Liability A) Oregon has adopted strict liability with respect to product liability actions and abnormally dangerous activities. B) Restatement. Oregon has legislatively adopted RESTATEMENT (SECOND) OF TORTS 402A as the standard for strict liability in tort. Heaton v. Ford Motor Co., 248 Or. 467, 470, 435 P.2d 806 (1967). It also has adopted the comments to 402A. A product must be defective before there is liability. Anderson v. Klix Chem. Co., 256 Or. 199, 202, 472 P.2d 806 (1970). The imposition of tort liability in a product liability action is governed by OR. REV. STAT (2011). It provides that a person in the business of selling such 18

20 products is liable for any physical harm or property damage caused by a product that is sold in a defective condition unreasonably dangerous to the user when the product is expected to and does reach the consumer without substantial change in its condition. Id. C) Product liability. A product is defective if it contains a manufacturing defect, a design defect, or a warning or instruction defect. See OR. REV. STAT (2011). 1) Manufacturing defects. Manufacturing defects usually are the result of a deviation of the product from its intended design. Oregon courts apply the consumer expectation test. McCathern v. Toyota Motor Corp., 332 Or. 59, 75, 23 P.3d 320 (2001). It must be proved that the product was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Id. at 77. 2) Design defects. Design defects are usually a result of a problem in the entire product line. The consumer expectation test also applies to design defect cases. In proving a design defect, usually proof of the probability and gravity of potential harm from the product is required, as well as proof of a feasible alternative design. See id at 78. 3) Warning defects. Warning defects include the failure to warn of a risk and the failure to provide adequate instructions. See Phillips v. Kimwood Mach. Co., 269 Or. 485, 525 P.2d 1033 (1974). An adequate warning will prevent a plaintiff from recovering on a failure to warn theory, but a warning does not necessarily remove liability for a manufacturing defect. a) Learned intermediary. In Oregon, the learned intermediary doctrine is recognized as a defense based on the common law of negligence. It may not be applied in a strict liability regime. Griffith v. Blatt, 334 Or. 456, 467, 51 P.3d 1256 (2002). D) Abnormally dangerous activities. In Oregon, abnormally dangerous activities also warrant strict liability. Koos v. Roth, 293 Or. 670, , 652 P.2d 1255 (1982). 1) Both legal and factual information is relevant to whether an activity will be considered abnormally dangerous. Speer & Sons Nursery v. Duyck, 92 Or. App. 674, , 759 P.2d 1133 (1988). With respect to legal factors that are relevant to whether an activity is abnormally dangerous, the court will look to legislative and administrative statutes and regulations that reflect policy and value judgments regarding the activity. Id. at 677; Ellis v. Ferrellgas, L.P., 211 Or. App. 648, 654, 156 P.3d 136 (2007). In determining whether an activity is abnormally dangerous, the court also will consider the magnitude of the harmful event and the probability that the event will occur despite all reasonable precautions. Koos v. Roth, 293 Or. 670, , 652 P.2d 1255 (1982). 19

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