OREGON LAW AT-A-GLANCE

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1 1. ASSUMPTION OF THE RISK: This doctrine was abolished in Oregon. ORS (2). But see Comparative Negligence below. 2. COLLATERAL SOURCE RULE: The Court may deduct from a damages award certain collateral benefits that a plaintiff has already received, but the following sources are exempt: benefits that the plaintiff, the person injured, or the person s estate is obligated to repay; insurance benefits for which the plaintiff or plaintiff s family member paid premiums; and retirement, disability, pension plan, and social security benefits. ORS (1). Evidence of collateral benefits is inadmissible as evidence during the underlying trial, but shall be received by the Court through affidavit submitted after the verdict. ORS (2). 3. COMPARATIVE NEGLIGENCE: The plaintiff must be 50% or less negligent in order to recover damages. The plaintiff s recovery is reduced by the degree of his or her fault. ORS (1). 4. DEATH CASES: Oregon statutes recognize separate wrongful death and survival actions. ORS , and ORS Wrongful death actions are claims brought by the decedent s personal representative against the person responsible for the decedent s death. Survival actions do not create a claim; rather, they permit a party s tort actions to survive the death of that party. 5. DRAM SHOP ACT: This Act is recognized in Oregon for persons/entities licensed by the Oregon Liquor Control Commission who serve alcoholic beverages to a patron while visibly intoxicated. ORS A claim may also be brought under a common law negligence theory. See Chartrand v. Coos Bay Tavern, 298 Or. 689 (1985). 6. JOINT AND SEVERAL LIABILITY: The liability of each defendant is several and not joint. ORS (1). Damages are awarded to the plaintiff against each defendant found to be liable in any degree, based on percentages of fault determined by the trier of fact. ORS (2). Also note that a defendant whose percentage of fault is more than 25% or 1

2 greater than the plaintiff's percentage of fault is subject to a reallocation of any uncollectible portion of the judgment. ORS (4). 7. MANDATORY AUTOMOBILE LIABILITY COVERAGE: Mandatory limits are $25,000 for bodily injury to one person; $50,000 for bodily injury to two or more people in any one accident; and $20,000 for damage to the property of others in any one accident. ORS (2). 8. CASES INVOLVING A MINOR CLAIMANT: When in litigation, a minor must appear as a party through a court-appointed conservator, guardian, or guardian ad litem. ORCP 27 A. A party may settle a minor s claim directly with the person having legal custody of the minor and obtain a settlement agreement that is effective as if the minor were an adult, without having to obtain court approval of the settlement, if the total settlement is $25,000 or less and other requirements are met. ORS NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: A plaintiff may recover damages for emotional distress, in the absence of physical injury, if the defendant s conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent. Paul v. Providence Health System-Oregon, 351 Or. 587 (2012). 10. OFFER OF JUDGMENT: A defendant may, at any time up to 14 days before trial, serve upon the plaintiff an offer to allow judgment in an amount specified therein. ORCP 54 E(1). If the offer is not accepted and the plaintiff fails to obtain a judgment more favorable than the offer, the plaintiff shall not be entitled to recover costs, prevailing party fees, disbursements or attorney fees incurred after the date of the offer, and the defendant may recover costs and disbursements from the plaintiff from the date of the offer. ORCP 54 E(3). 11. PUNITIVE DAMAGES: Punitive damages are recoverable in certain civil actions if the plaintiff proves, by clear and convincing evidence, that the defendant acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a 2

3 conscious indifference to the health, safety and welfare of others. ORS (1). A pleading may not contain a request for an award of punitive damages. ORS (1). At any time after the pleading is filed, a party may move to allow an amendment to assert a claim for punitive damages. ORS (2). There is no cap on a punitive damages award. Punitive damages are allocated: 30% to the prevailing party, 60% to the Criminal Injuries Compensation Account, and 10% to the State Court Facilities and Security Account. ORS (1). 12. SEAT BELT RULE: Generally, evidence of the failure to use a seat belt may be introduced only to mitigate the damages of an injured party, and then only up to 5% of the damages to which that party would otherwise be entitled. ORS (1). The 5% cap does not apply in a personal injury action arising out of a motor vehicle accident where the failure to use a seat belt is a substantial contributing cause of the accident. ORS (2). 13. SETTLEMENT OF WRONGFUL DEATH CASES: Settlement of wrongful death claims is paid to the personal representative of the decedent. ORS The decedent s beneficiaries are entitled to notice and an opportunity for objection before the court determines the disposition of the settlement proceeds. In Re Estate of White, 289 Or. 13, 19 (1980). 14. STATUTE OF LIMITATIONS: The statutes of limitations are: six years for breach of contract and property damage (ORS ); three years for wrongful death (ORS ); two years for personal injury, professional negligence, non-contractual breach of fiduciary duty, fraud and deceit (ORS ); and one year for libel and slander (ORS ). Statutes of ultimate repose also apply. 15. STATUTORY CAP ON DAMAGES: Non-economic damages in a wrongful death action are capped at $500,000. ORS (1); Hughes v. PeaceHealth, 344 Or. 142 (2008). The cap does not apply to personal 3

4 injury actions. Lakin v. Senco Products, Inc., 329 Or. 62 (1999), clarified 329 Or. 369 (1999). 16. UM, UIM, AND PIP COVERAGE: Uninsured motorist (UM) and personal injury protection (PIP) coverage are mandated by Oregon law. ORS UM limits include UIM coverage if the accident arises out of the use of a motor vehicle with motor vehicle liability insurance that provides recovery less than the insured s UM coverage. ORS (2). A UM/UIM claim accrues only after an insured brings a timely claim against the uninsured motorist and institutes arbitration, or the insured files an action against the UM/UIM insurer within two years from the settlement or judgment against the uninsured motorist. ORS (12). The minimum limits are: UM/UIM: $25,000 per person and $50,000 per accident for bodily injury; PIP: $15,000 per person. ORS (2); ORS (1)(a). 17. UNINSURED MOTORIST RAMIFICATIONS: Uninsured drivers are generally unable to recover noneconomic damages for injuries or death resulting from a motor vehicle accident. ORS (1). DISCLAIMER The above is made available by Bodyfelt Mount for informational purposes only and is not legal advice. In particular, the material here is not intended to apply to specific circumstances, and persons receiving this information should not act upon the information without seeking professional legal advice. An attorney/client relationship does not begin until an attorney has evaluated specific circumstances and the attorney and prospective client have entered into a representation agreement. The law cited herein is current as of December

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