Updated 2015

STATE OF OREGON COMPENDIUM OF LAW

Prepared by J. Richard Urrutia Williams Kastner

888 SW Fifth Avenue, Suite 600 Portland, OR 97204

(503) 228-7967 www.williamskastner.com

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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. § 20.080(1) (2013). 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 OR. REV. STAT. § 46.465, the defendant tendered an amount

not less than the damages plaintiff was ultimately awarded. OR. REV. STAT. § 20.080(1)

(2013).

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. § 20.080(2) (2013).

B) Contract attorneys’ fees. The pre-suit notice requirement for attorney fees for any claim

based on contract is governed by OR. REV. STAT. § 20.082 (2013). 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. § 46.461 (2013). 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 46.461, 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. § 20.098 (2013), or any action against the maker

of a dishonored check that is subject to OR. REV. STAT. § 30.701 (2013).

C) Public bodies. The pre-suit notice requirement for claims against public bodies and

officers of public bodies is governed by OR. REV. STAT. § 30.275 (2013). 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 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)

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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. § 30.970 (2013). 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. § 471.565 (2013). 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. 1-85 (2014). 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.

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,

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http://courts.oregon.gov/OJD/courts/index.page (last visited February 13, 2015).

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, http://www.oregon.gov/OAH/Pages/index.aspx (last visited

February 13, 2015).

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,

http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page (last visited

February 13, 2015).

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

cases involving violations, lesser crimes, and cases involving less serious

sentences. See generally id.

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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 twenty-

seven (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. § 1.635 (2013); see also An

Introduction to the Courts of Oregon, OREGON COURTS, OREGON JUDICIAL

DEPARTMENT, http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page (last

visited February 13, 2015).

4) Court of Appeals. The ten justices for the Court of Appeals are elected to six-year

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, http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page (last

visited February 13, 2015).

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 fifty-

thousand 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

arbitration. OR. REV. STAT. §§ 36.400-.405 (2013). 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. § 36.600, et. seq. (2013).

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2) Mediation. Referral of civil cases to mediation is governed by OR. REV. STAT.

§ 36.185 (2013). 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) (2014). 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) (2014). 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) (2014). 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;

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

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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 § 60.121 or

§ 60.731 (2013).

D) Waiver. Waiver of service was previously governed by OR. REV. STAT. § 21.605 (2007).

That statute was repealed in 2007.

E) State. The service of a summons upon the state is governed by OR. R. CIV. P. 7 (D)(3)(g)

(2014). 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) (2014). 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)

(2014). 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) (2014). 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. § 12.070

(2013). Any such action must be commenced within ten (10) years.

B) Contracts. The statute of limitations applicable to actions brought against certain contracts

is governed by OR. REV. STAT. § 12.080 (2013). Subject to some exceptions, actions based

upon a contract must be commenced within six (6) years.

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C) Garnishees. The statute of limitations applicable to proceedings against garnishees are

governed by OR. REV. STAT. § 12.085 (2013). 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. § 12.100 (2013). 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. § 12.110(1) (2013). 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. § 12.110(2)

(2013). 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. § 12.110(3) (2013). 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. § 12.110(4) (2013). 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. § 12.110(5)

(2013). 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 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. § 12.117 (2013). Such actions

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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. § 12.120 (2013). 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. § 12.120 (2013). 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.

§ 12.125 (2013). 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. § 12.130 (2013). 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. § 12.135(1) (2013). 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 improvement

is governed by OR. REV. STAT. § 12.135(3) (2013). Such action must be commenced before

the earliest of: (1) two years after the date the injury or when damage is first discovered or

should have been discovered; (2) within ten (10) years from substantial completion or

abandonment of the construction, alteration, or repair of a residential structure, small

commercial structure or large commercial structure owned or maintained by a homeowners

association (all as defined by statute); or (3) six years after substantial completion or

abandonment of the construction, alteration or repair of a large commercial structure, other

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than a large commercial structure owned or maintained by a homeowners association (as

defined by statute).

Q) Other actions. The statute of limitations applicable to actions for causes not otherwise

provided for is governed by OR. REV. STAT. § 12.140 (2013). 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. § 12.160 (2013).

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. § 12.190 (2013). 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. § 12.195 (2013). 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. § 12.274 (2013). 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.

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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. § 12.276 (2013). 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. § 12.278 (2013). 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. § 12.280 (2013). 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. § 12.282 (2013). 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. § 30.020 (2013). Actions for wrongful death shall be

commenced within three (3) years after the injury causing the death is, or reasonably should

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.

§ 30.275(2) (2013). 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. § 30.905 (2013). Such

action must be commenced not later than the earlier of two (2) years after the 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,

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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. § 30.275(2) (2013). 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) Product liability. The statute of limitations applicable to a product liability action for

death is governed by OR. REV. STAT. § 30.905(3) (2013). 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. § 30.275(2)

(2013). 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.

CC) Asbestos. The statute of limitations applicable to a product liability action for damages

resulting from asbestos-related disease is governed by OR. REV. STAT. § 30.907 (2013).

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.

DD) 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. § 12.110(4) (2013). 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. § 12.115 (2013). 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.

§ 12.135(1) (2013). “An action against a person, whether in contract, tort, or otherwise,”

arising from such person having performed, supervised, designed, or engineered the

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.”

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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.

§ 12.135(3) (2013). 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. § 12.137(3) (2013). 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. § 12.274 (2013). 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. § 12.280 (2013). 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. § 30.905(2)(2),(4) (2013). A product liability action may not be brought

for any death, personal injury, or property damage caused by a product that occurs more

than ten (10) years after the date on which the product was first purchased for use or

consumption or the expiration of any statute of repose for an equivalent civil action in the

state in which the product was manufactured, or if the product was manufactured in a

foreign country, the expiration of any statute of repose for an equivalent civil action in the

state into which the product was imported. OR. REV. STAT. § 30.907 (2013) (asbestos-

related disease damages) and § 30.908 (1)-(4) (2013) (breast implant injuries) are the only

exceptions to this statute of repose.

Venue Rules

A) Venue is governed by OR. REV. STAT. §§ 14.040-.080 (2013).

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;

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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. § 14.040 (2013).

2) 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. § 14.050 (2013).

3) “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. § 14.060 (2013).

4) 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. § 14.080 (2013).

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.

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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. § 14.110 (2013). 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, 129 P.3d 193 (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.

NEGLIGENCE

Comparative Fault/Contributory Negligence

A) Oregon is a modified contributory fault jurisdiction. OR. REV. STAT. § 31.600 (2013). 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

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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, 563-64, 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. § 656.012(2) (2013).

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. § 656.018 (2013). Instead of damages, the law

provides recovery schedules for benefits and compensation. OR. REV. STAT. §§ 656.202-

.258 (2013).

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. § 656.019 (2013). 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. § 656.019 (2013).

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. § 656.154 (2013). 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 elect not

to proceed against the third party, the worker’s cause of action is assigned to the

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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. § 656.591(1) (2013). If the worker successfully pursues a claim against a

third-party, the paying agency is entitled to reimbursement. OR. REV. STAT. §

656.593(1)(c) (2013).

2) Intentional injuries. Oregon also has a statutory exception to the exclusive

remedy provision for intentional injuries to the employee. OR. REV. STAT. §

656.156 (2013). 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. § 656.018(3)(a) (2013). 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. § 656.020

(2013).

D) Subject workers. The Workers’ Compensation law applies to all employers with one or

more subject employees. OR. REV. STAT. § 656.023 (2013). All workers are “subject

workers” unless specifically exempted from the act. OR. REV. STAT. § 656.027 (2013).

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. § 656.027 (2013).

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. § 656.017(1)

(2013). A carrier-insured employer is an employer that has a guaranty contract that is

issued by a guaranty contract insurer. OR. REV. STAT. § 656.407(1)(a) (2013). A self-

insured employer is an employer that personally assumes the responsibility of

compensating workers for compensable injuries. OR. REV. STAT. § 656.403(1) (2013).

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 categories of

indemnification in Oregon: contractual indemnity and common-law indemnity.

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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. § 31.610(1) (2013). 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

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

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several liability of each party is then set out by the court. OR. REV. STAT. §§ 31.605-.610

(2013).

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. § 31.610(3) (2013).

D) Contribution. The right of contribution among joint tortfeasors is governed by OR. REV.

STAT. § 31.800 (2013). 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. § 31.815(1)(b) (2013).

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.

§ 31.815(2) (2013).

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, 67-68 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 OR. REV. STAT. § 18.440, now numbered

OR. REV. STAT. § 31.800 (2013)).

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. 30.920 (2013). It provides that a person in the business of selling such

products is liable for any physical harm or property damage caused by a product that is

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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. 30.900 (2013).

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, 677-78, 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, 676-77, 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, 676-82, 652 P.2d 1255 (1982).

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2) Safety compliance. In Oregon, compliance with safety regulations is not a defense

to a strict liability action based upon an abnormally dangerous activity. See

McLane v. Nw. Natural Gas, 255 Or. 324, 338-39, 467 P.2d 635 (1970).

Compliance with safety regulations is not a defense because safety regulations

establish the standard of care and strict liability actions are not based upon the

defendant’s failure to conform to the applicable standard of care.

Willful and Wanton Conduct

A) Standard of conduct. In Oregon, willful and wanton misconduct is not an independent

tort. Instead, it is merely a standard of conduct used to determine if a plaintiff can recover

punitive damages. The standard for an award of punitive damages is governed by OR. REV.

STAT. § 31.730 (2013).

B) Punitive damages. Punitive damages are aimed at punishing a willful, wanton, or

malicious wrongdoer, and at deterring the wrongdoer and others who are similarly situated

from engaging in like conduct in the future. Howard v. Waremart, Inc., 147 Or. App. 135,

141, 935 P.2d 432 (1997) (citing Friendship Auto v. Bank of Willamette Valley, 300 Or.

522, 532, 716 P.2d 715 (1986)).

C) Distinguishing from negligent conduct. Willful and wanton conduct is not the same as

negligent conduct. Blume v. Fred Meyer, Inc., 155 Or. App. 102, 115, 963 P.2d 700 (1998).

Willful and wanton conduct requires the actor’s acts to rise above mere negligence. Id.

D) Substantial risk of harm. For punitive damages purposes, wanton misconduct is conduct

that creates a substantial risk of harm to another and is purposely performed with an

awareness of the risk and a disregard of the consequences. Axen v. Am. Home Prods. Corp.,

158 Or. App. 292, 312, 974 P.2d 224 (1999).

DISCOVERY

Electronic Discovery Rules

A) Oregon’s definition of “document” includes electronically stored information. See OR. R.

CIV. P. 43A (2014). A request for electronically stored information may specify the form

in which the information is to be produced by the responding party. OR. R. CIV. P. 43E

(2014). If the requesting party does not specify the form in which the information is to be

produced, the responding party must produce the information in the form in which it is

ordinarily maintained or a reasonably useful form.

B) Very few cases tried in the state have addressed the issue of electronically stored

information.

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Expert Witnesses

A) In Oregon, pretrial discovery of expert witnesses is prohibited. Stevens v. Czerniak, 336

Or. 392, 404, 84 P.3d 140 (2004). Discovery is not permitted under the rules with respect

to the expert’s identity or the subject matter of the expert’s testimony.

B) Non-testifying experts. Discovery of the opinions of non-testifying expert witnesses is

governed by work product and evidentiary rules. For example, a retained expert is

considered to be a representative of the party. State v. Riddle, 330 Or. 471, 477, 8 P.3d.

980 (2000). Under OR. R. CIV. P. 36(B)(3) (2014), documents and tangible things produced

by representatives of a party are protected from discovery. Mental impressions,

conclusions, opinions or legal theories developed by an attorney or the party’s

representative during the course of litigation are also protected. In addition, OR. EVID.

CODE R. 503(2), codified at OR. REV. STAT. § 40.225 (2013) protects confidential

communications between a party and the party’s representative. An expert’s

communications with a lawyer, therefore, may be protected from discovery. Dyer v. R.E.

Christiansen Trucking, Inc., 118 Or. App. 320, 329, 848 P.2d 104 (1993), rev’d on other

grounds, 318 Or. 391, 868 P.2d 1325 (1994). While experts employed for purposes of

litigation are protected under the aforementioned rules, the rules do not prevent discovery

of information about or the opinions of experts who perform investigations in the regular

course of business. United Pac. Ins. Co. v. Traschel, 83 Or. App. 401, 404, 731 P.2d 1059

(1987). In Riddle, the court noted that “[t]here is no absolute privilege, arising either out

of [the court rule governing attorney-client privilege], the work-product doctrine, or the

Supreme Court's cases, that prevents an expert whom a litigant has employed to investigate

a factual problem from testifying for the other side as to the expert's thoughts and

conclusions that are segregated from confidential communications.” 330 Or. at 486.

C) Form of questions. During an expert’s testimony in trial, questions calling for the expert’s

opinion need not be hypothetical in form. See Wulff v. Sprouse-Reitz Co., 262 Or. 293, 498

P.2d 766 (1972). An expert witness may testify as to an opinion and the reason for the

opinion without first identifying the facts or data the opinion is based upon. OR. REV.

STAT. § 40.425 (2013). The expert, however, can be asked on cross-examination to specify

the facts or data that support the opinion.

Non-Party Discovery

A) Subpoenas issued to witnesses to appear at trial are governed by OR. R. CIV. P. 55 (2014).

Subpoenas may be issued to require witnesses to appear and testify or to produce

documents. Issuance of subpoenas is governed by OR. R. CIV. P. 55(C)(1) (2014).

B) Service. Service of subpoenas on witnesses is governed by OR. R. CIV. P. 55(D)(1) (2014).

It provides that a subpoena may be served by the party or any other person eighteen (18)

years of age or older. Service shall be made by delivering a copy to the witness personally.

Service by mail is acceptable if the subpoena commands only the production of documents

and tangible things, and does not require the appearance of the witness at trial or a

deposition. The party issuing the subpoena must give or offer to give the witness travel

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fees and one day’s attendance fees at the time of service. The service must be made so as

to allow the witness a reasonable time for preparation and travel to the designated location.

Subpoenas for the production of documents that are not accompanied by a command that

the witness appear at trial, a hearing, or a deposition must be served on each party at least

seven (7) days before the witness is required to produce the documents. In addition, the

witness must be served at least fourteen (14) days before the witness is ordered to appear

and produce the requested documents.

C) Geographic restrictions. Absent a court order, Oregon residents who are not a party to

the action may be required to appear for an examination or to produce documents only in

the county in which the person resides, is employed, or transacts business. OR. R. CIV. P.

55(F)(2) (2014).

D) Own previous statements. Under OR. R. CIV. P. 36(B)(3) (2014), a non-party witness

may obtain copies of its own previous statements about the action or its subject matter. A

non-party witness need not make any showing to obtain copies of these statements when

faced with a work product objection.

Privileges

A) Statute, the federal and state constitutions, and case law determine what information is

privileged. Under OR. R. CIV. P. 36 B(1) (2014), parties may not discover privileged

material.

B) Attorney-client privilege. Oregon’s attorney-client privilege is governed by OR. EVID.

CODE R. 503, codified at OR. REV. STAT. § 40.225 (2013). The attorney-client privilege

allows a client to refuse to disclose, and to prevent another person from disclosing,

confidential communications between the client and the attorney made for “the purpose of

facilitating the rendition of legal services.” The protection also extends to communications

made between the client and the attorney’s representative, and the client’s representative

and the attorney. There are a number of exceptions to the privilege afforded to confidential

communications. For example, the attorney-client privilege does not protect

communications if the attorney’s services were used to commit a crime or fraud, and

privilege does not apply to communications relevant to issues of breach of the attorney’s

duties to the client.

C) Work product. Oregon’s work product doctrine is governed by OR. R. CIV. P. 36(B)(3)

(2014). The work product doctrine prevents another party from obtaining documents and

other tangible things that a lawyer or a party’s representative prepared in anticipation of

litigation, absent a showing of substantial need for the materials. The work product

doctrine aims to prevent a party from gaining insight into the mental impressions,

conclusions, and legal theories of the other party’s attorney or representative. The court

will allow discovery of work product materials only upon a showing of substantial need by

the other side. To discover the materials, a party must be able to show that it is unable to

obtain equivalent materials without substantial hardship.

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1) Anticipation of litigation. Witness statements taken in anticipation of litigation

are protected under the work product doctrine and are only discoverable upon a

showing of substantial need and undue hardship. A party’s own statement,

however, is discoverable without any special showing. Similarly, statements of

non-party witnesses are discoverable by the non-party witness without any special

showing.

2) Regular course of business. Witness statements taken “in the regular course of

business” and not in anticipation of litigation are discoverable and not protected by

the work product doctrine.

D) Confidentiality. Under OR. RULES OF PROF’L CONDUCT R. 1.6 (2014), a lawyer is

prohibited from revealing information related to the representation of a client unless the

client consents, disclosure is impliedly authorized to carry out the representation, or an

exception to the confidentiality requirement exists. A lawyer may reveal information

relating to the representation of a client to the extent the lawyer reasonably believes

necessary in order to prevent a crime or certain death or bodily harm. A lawyer may also

reveal information in order to gain legal advice about the lawyer’s compliance with the

professional rules. Additional circumstances in which a lawyer has discretion to disclose

confidential information exist.

E) Self-critical analysis. The self-critical analysis privilege protects from discovery critical

self appraisals or assessments of a party’s compliance with “regulatory and legal

requirements without creating evidence” that may be used against the party in future

litigation. See Reichold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524 (N.D. Fla.

1994). Oregon courts have not addressed whether the self-critical analysis privilege should

be recognized.

F) Physician-patient privilege. Oregon’s physician-patient privilege is governed by OR.

EVID. CODE R. 504-1, codified at OR. REV. STAT. § 40.235 (2013). The physician-patient

privilege applies in civil actions. The physician-patient privilege allows a patient to refuse

to disclose, and to prevent others from disclosing, confidential communications made for

the purpose of medical diagnosis and treatment. The privilege also protects

communications made by individuals participating in the diagnosis or treatment, including

the patient’s family. The privilege does not apply to communications made during the

course of a court-ordered examination.

Despite the privilege, OR. R. CIV. P. 44(C) (2014) requires a party alleging personal injuries

in a civil action to provide copies of all written reports and notations of medical

examinations relating to the party’s claimed injuries.

G) Other medical privileges. Oregon also has a nurse-patient privilege, set forth at OR. EVID.

CODE R. 504-2, codified at OR. REV. STAT. § 40.240 (2013), and a psychotherapist-patient

privilege, set forth at OR. EVID. CODE R. 504, codified at OR. REV. STAT. § 40.230 (2013).

24

Requests to Admit

A) Requests for admissions are governed by OR. R. CIV. P. 45 (2014). A party may seek up

to thirty (30) admissions from another party. Admissions may be sought as to facts,

opinions of facts, and the application of law to fact. A party who has been served with a

request for admissions has thirty (30) days from the date of service to respond by admitting,

denying, or objecting to the request. The reason for any objection must be specified.

B) A party may recover its trial expenses, including attorney fees, for any fact or issue of law

that that party proves at trial and that the opposing party denied in a request for admission.

OR. R. CIV. P. 46(C) (2014); Watts v. Lane Cnty., 142 Or. App. 489, 922 P.2d 686 (1996).

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction

Expert witnesses who qualify based on knowledge, skill, experience, training, or education may

testify regarding accident reconstruction as long as a proper foundation for the testimony is

established under OR. EVID. CODE R. 702, codified at OR. REV. STAT. § 40.410 (2013), through

OR. EVID. CODE R. 703, codified at OR. REV. STAT. § 40.415 (2013), and the testimony will assist

the trier of fact. Qualified expert witnesses, including police officers, may render an opinion as to

point of impact. Madrid v. Robinson, 324 Or. 561, 931 P.2d 791 (1997). Opinions about point of

impact by police officers who do not have special training or experience in the field, however, may

be excluded. Davis v. Cnty. of Clackamas, 205 Or. App. 387, 395, 134 P.3d 1090 (2006).

Appeal

A) In Oregon, civil appeals may only be taken when permitted by a statute. See OR. REV.

STAT. § 19.205 (2013).

B) Final judgments. Appeals from civil judgments generally are permitted only after entry

of a final judgment. Multistate Tax Comm'n v. Dow Chem. Co., 295 Or. 831, 671 P.2d 108

(1983). A final judgment is a judgment that disposes of all issues related to the rights and

liabilities of the parties. Id. An intermediate order which affects a substantial right of a

party, even though not immediately appealable, may nevertheless be reviewed on appeal.

C) Notice. Notice of an appeal must be served and filed within thirty (30) days after entry of

the judgment being appealed. OR. REV. STAT. § 19.255 (2013). Timely filing “does not

excuse a failure to serve notice on the adverse party.” Hein v. Columbia Cnty., 96 Or. App.

576, 773 P.2d 791 (1989); see also Mullens v. L.Q. Dev., Or. Ltd., 312 Or. 599, 825 P.2d

1376 (1992). A certificate of mailing, however, can establish timely service even if adverse

party claims to have never received service. Mullens, 312 Or. 599, 825 P.2d 1376 (1992).

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Biomechanical Testimony

A) Testimony of a biomechanical engineer is admissible only when the testimony is

scientifically reliable and pertinent. See OR. EVID. CODE R. 702, codified at OR. REV. STAT.

§ 40.410 (2013). The court will consider a number of factors in determining whether

scientific evidence is admissible. State v. Brown, 297 Or. 404, 687 P.2d 751 (1984); State

v. O’Key, 321 Or. 285, 899 P.2d 663 (1995). The factors the court will consider are as

follows:

(1) The technique's general acceptance in the field; (2) The expert's qualifications and

stature; (3) The use which has been made of the technique; (4) The potential rate of error;

(5) The existence of specialized literature; (6) The novelty of the invention; and (7) The

extent to which the technique relies on the subjective interpretation of the expert.

Brown, 297 Or. at 417.

B) Where a trial court finds that testimony will have a particularly strong effect on the jury

because of its scientific nature, the testimony must be supported by appropriate scientific

validation. Marcum v. Adventist Health System/West, 345 Or. 247, 244, 193 P.3d 1 (2008);

State v. O’Key, 321 Or. 285, 293, 899 P.2d 663 (1995). Concerns about scientific validity

are higher “where the proffered expert scientific testimony is innovative, nontraditional,

unconventional, controversial, or close to the frontier of understanding.” O’Key, 321 Or.

at 293.

Collateral Source Rule

Oregon’s collateral source rule prohibits the introduction of evidence meant to show that an injured

party’s damages will be paid by a source other than that which caused the injury. OR. REV. STAT.

§ 31.580 (2013). The statute allows the court to deduct amounts that the plaintiff will receive or

has received from collateral sources before entering the judgment in the case. The court, however,

may not reduce the judgment for the following collateral benefits: (1) “benefits which the party

awarded damages, the person injured or that person’s estate is obligate to repay;” (2) “life

insurance or other death benefits;” (3) “insurance benefits for which the person injured or deceased

or members of that person's family paid premiums;” and (4) “retirement, disability, and pension

plan benefits, and federal Social Security benefits.” Evidence of the benefits is to be received by

the court by affidavit submitted after the verdict. OR. REV. STAT. § 31.580(2) (2013).

Convictions

A) OR. EVID. CODE R. 404, codified at OR. REV. STAT. § 40.170 (2013), provides that evidence

of past crimes, wrongs, or bad acts is not admissible to prove action in conformity

therewith. It may, however, be admissible for other purposes. Even if the evidence is

admissible for another purpose, however, it may be excluded under OR. EVID. CODE R.

403, codified at OR. REV. STAT. § 40.160 (2013) if the probative value of the evidence of

the past bad acts is substantially outweighed by the danger of unfair prejudice.

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B) Impeachment. Evidence of the past conviction of a witness is admissible for impeachment

purposes only under OR. EVID. CODE R. 609, codified at OR. REV. STAT. § 40.355 (2013).

Evidence of a witness’s conviction is admissible only when the crime was punishable by

death or imprisonment in excess of one year or the crime involved false statements or

dishonesty.

Day In The Life Videos

Day in the life videos are admissible under the Oregon Evidence Code, as long as the video’s

probative value in demonstrating the effects of an injury on the plaintiff’s life outweigh the

possibility that the video will generate false sympathy for the plaintiff. Arnold v. Burlington N.

R.R., 89 Or. App. 245, 249, 748 P.2d 174 (1988).

Dead Man’s Statute

Oregon does not have a Dead Man’s Statute. Dead Man’s Statutes render a witness incompetent

to testify regarding transactions with a deceased person. The purpose of such statutes is to protect

the decedent’s estate from fraudulent claims. Oregon law accomplishes this purpose in the absence

of a Dead Man’s Statute by requiring “competent, satisfactory evidence other than the testimony

of the claimant” to recover upon a claim denied by the representative of a deceased’s estate. OR.

REV. STAT. § 115.195 (2013).

Medical Bills

Under OR. EVID. CODE R. 409, codified at OR. REV. STAT. § 40.195 (2013), evidence of a

defendant’s payment or offer to pay the plaintiff’s medical bills and other similar expenses is not

admissible to prove liability for an injury. However, such evidence may be admissible for another

purpose, such as to prove damages. Admission of such evidence for another purpose would be

subject to the relevance versus unfair prejudice analysis set forth in Rule 403, codified at OR. REV.

STAT. § 40.160 (2013).

Offers of Judgment

Under OR. R. CIV. P. 54 (2014), an offer of judgment that is not accepted or filed within the

prescribed amount of time cannot be offered as evidence at trial.

Offers of Proof

A) An offer of proof establishes for the record the reason for which an attorney was offering

evidence after the evidence is objected to and disallowed by a court.

B) When required. Offers of proof are generally required unless the reason for offering the

evidence is easily discerned from the context in which it was offered. Vandermay v.

Clayton, 328 Or. 646, 984 P.2d 272 (1999).

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C) Where no offer of proof is made, an appellate court will usually refuse to consider an

assignment of error based on the trial court’s refusal to admit the evidence. State v. Smith,

319 Or. 37, 43, 872 P.2d 966 (1994).

Prior Accidents

A) Generally inadmissibility. Evidence of prior accidents to prove negligence or lack of

negligence is generally inadmissible in Oregon. Warner v. Maus, 209 Or. 529, 304 P.2d

423 (1956). It may be admissible, however, to prove causation, knowledge, intent, or

defect.

B) Requirement for admissibility. In addition, to be admissible, the prior accident must

have occurred under substantially similar conditions. Lakin v. Senco Products, Inc., 144

Or. App. 52, 925 P.2d 107 (1996), aff’d, 325 Or. 438, 939 P.2d 621 (1997).

Relationship to the Federal Rules of Evidence

Oregon has adopted its own evidence code which substantially follows the federal rules. There

are some differences between Oregon’s evidence code and the federal evidence. For example,

Oregon does not recognize an exception to the hearsay rule for dying declarations and learned

treatises may be used only for impeachment purposes.

Seat Belt and Helmet Use Admissibility

A) Seat belts. Under Oregon law, evidence of the nonuse of a safety belt or harness may be

admitted only to mitigate the injured party's damages in action for personal injury damages

arising out of a motor vehicle accident. The mitigation shall not exceed five percent of the

amount to which the injured party would otherwise be entitled. OR. REV. STAT. § 31.760

(2013).

1) Inapplicability. OR. REV. STAT. § 31.760 does not apply to actions brought under

OR. REV. STAT. § 30.900 (2013) (Product liability civil actions) or OR. REV. STAT.

§ 30.920 (When seller of lessor of product liable) or when nonuse of a safety belt

or harness is a substantial contributing cause of the accident itself.

Spoliation

When a party has the ability to produce evidence and does not, a presumption exists that the

evidence he fails to produce is unfavorable to him. OR. EVID. CODE R. 311, codified at OR. REV.

STAT. § 40.135 (2013).

Subsequent Remedial Measures

A) Not admissible to show negligence. Under Oregon law, evidence of subsequent remedial

measures is not admissible to prove negligence or culpability. OR. EVID. CODE R. 407,

codified at OR. REV. STAT. § 40.185 (2013). Remedial measures are defined as “measures

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. . . which, if taken previously, would have made the event less likely to occur.” Evidence

of remedial action will not be considered subsequent unless the action was taken after the

injury and in response to or with knowledge of the injury at issue. Van Gordon v. Portland

Gen. Elec. Co., 298 Or. 497, 693 P.2d 1285 (1985).

B) Admissible purposes. Evidence of subsequent remedial measures may be admissible for

other purposes. Other uses for which such evidence might be admissible are to prove

ownership, control, or feasibility of precautionary measures, if controverted. OR. EVID.

CODE R. 407 (2013). Such evidence also may be admissible for impeachment. If the

evidence is admissible for another purpose, it will be subject to the Rule 403 codified at

OR. REV. STAT. § 40.160 (2013) probative value versus unfair prejudice analysis.

Use of Photographs

Photographs are admissible as evidence so long as they are relevant; not overly likely to cause

prejudice, confusion, or delay; and they can be authenticated. A photograph can be authenticated

by a witness who can knowledgeably testify that the photograph accurately depicts a particular

scene at a particular time. United States v. Brannon, 616 F.2d 413 (9th Cir. 1980), cert. denied,

447 U.S. 908 (1980).

DAMAGES

Caps on Damages

In wrongful death actions, non-economic damages are capped at five hundred thousand dollars

($500,000.00). OR. REV. STAT. § 31.710 (2013). Non-economic damages include all subjective,

non-monetary losses. The statute excludes tort actions against public bodies and workers’

compensation claims from the cap. The damages cap has been held to violate the remedy clause

of the Oregon State Constitution in personal injury cases. Hughes v. PeaceHealth, 344 Or. 142,

178 P.3d 225 (2008).

Calculation of Damages

Generally speaking, Oregon law seeks to restore an injured party to the position it enjoyed prior to

injury and to compensate an injured party for its losses. United Engine Parts v. Reid, 283 Or. 421,

584 P.2d 275 (1978). Oregon allows compensation for economic and non-economic damages, as

well as punitive damages.

Available Items of Personal Injury Damages

A) Medical bills. An Oregon plaintiff can recover damages for past, present, and future

medical bills that are proved to be reasonably related to the plaintiff’s injury.

While damages will generally be reduced by any amount a provider writes off under the

collateral source rule, billed medical costs which are later written off by the provider under

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an agreement with a third-party payer are recoverable as economic damages. White v.

Jubitz Corp., 219 Or. App. 62, 182 P.3d 215 (2008).

B) Hedonic damages. Hedonic damages are damages for injury relating to an individual’s

ability to enjoy life. In Oregon, damages for impaired living capacity are part of plaintiff’s

recoverable noneconomic damages. See generally Borntrager v. McCann, 244 Or. 620,

420 P.2d 53 (1966).

C) Increased risk of harm. In Oregon, a plaintiff has not stated a negligence claim against

the defendant and cannot recover damages when the defendant’s conduct only significantly

increases the risk of future harm and requires plaintiff to incur medical monitoring costs.

Lowe v. Phillip Morris USA, Inc., 344 Or. 403, 183 P.3d 181 (2008).

D) Disfigurement. Oregon recognizes disfigurement as a type of compensable injury. See

Johnson v. Hansen, 237 Or. 1, 389 P.2d 330 (1964) (holding there was nothing in the

amount of the award to suggest the jury was affected by prejudice given the permanent

disability, brain damage, and disfigurement the plaintiff suffered).

E) Loss of normal life. In Oregon, loss of normal life, including impairment of an

individual’s ability to enjoy life, is compensable. OR REV. STAT. §31.710(2)(b) (2013).

Oregon courts also allow damages for a plaintiff’s loss of the “power to work,” which is

separate from damages for lost earning capacity. Alt v. Krebs, 161 Or. 256, 88 P.2d 804

(1939).

F) Disability. Disability is recognized as a type of compensatory damage. Wheeler v.

Marathon Printing, Inc., 157 Or. App. 290, 974 P.2d 207 (1998).

G) Past pain and suffering. Past pain and suffering is recognized as a type of compensable

damage. See Frangos v. Edmunds, 179 Or. 577, 173 P.2d 596 (1946).

H) Future pain and suffering. Oregon recognizes future pain and suffering as a compensable

type of damage resulting from a personal injury. Skultety v. Humphreys, 247 Or. 450, 431

P.2d 278 (1967). To recover for future plain and suffering, the plaintiff must prove that

the future pain and suffering is causally related to the plaintiff’s injuries and that the

plaintiff’s injuries are casually related to the defendant’s conduct. See Crawford v. Seufert,

236 Or. 369, 388 P.2d 456 (1964). The likelihood of future pain and suffering and

causation must be proven in terms of reasonable probability. See id.

I) Loss of society. Under Oregon law, a parent cannot recover for the loss of a minor child’s

society based upon the defendant’s nonfatal negligent injury of the minor child. Beerbower

v. State ex rel Or. Health Scis., 85 Or. App. 330, 736 P.2d 596 (1987). A child also has no

claim for damages resulting from the defendant’s nonfatal negligent injury of a parent.

Norwest v. Presbyterian Intercommunity Health Hosp., 293 Or. 543, 652 P.2d 318 (1982).

In a wrongful death action, however, a decedent’s spouse, children, stepparents and parents

may recover for loss of the decedent’s society, companionship, and services. OR. REV.

30

STAT. § 30.020(2)(d) (2013). Oregon also allows a surviving spouse to maintain a loss of

society and companionship claim in addition to the statutory remedy for wrongful death.

This additional remedy only allows the spouse to recover damages for the time between

the decedent’s injury and his death. Elling v. Blake-McFall Co., 85 Or. 91, 97, 166 P. 57

(1957).

J) Loss of consortium. Traditional loss of consortium damages are recoverable. Knepper v.

Brown, 345 Or. 320, 195 P.3d 383 (2008).

K) Lost income, wages, earnings. Lost income, wages, and earnings are a form of

compensable economic damages. See OR. REV. STAT. § 31.710 (2013). A claim for lost

income, wages, or earnings is separate and distinct from damages for loss of earning

capacity. Claims for lost earning or wages must be established with reasonable certainty.

See Owens v. Haug, 61 Or. App. 513, 658 P.2d 523 (1983), rev. denied, 294 Or. 792, 662

P.2d 727 (1983).

Lost Opportunity Doctrine

The lost opportunity doctrine does not apply under Oregon law in the context of wrongful death

actions under OR. REV. STAT. § 30.020 (2013). This is because a plaintiff must show that a

defendant’s acts or omissions were sufficient to bring about decedent's death under 30.020, not

that there was a substantial possibility that a defendant’s actions caused decedent’s death. Joshi

v. Providence Health Sys. of Or. Corp., 342 Or. 152, 149 P.3d 1164 (2006).

Mitigation

A) Under Oregon law a plaintiff in a civil action is required to mitigate damages to whatever

extent reasonably possible.

B) Failure to mitigate. If the plaintiff fails to mitigate damages, the plaintiff’s damages

award will be reduced. In deciding whether the plaintiff failed to reasonably mitigate

damages, the court evaluates whether a reasonable person would have mitigated in the

plaintiff’s situation. Bly v. Moores Motor Co., 145 Or. 528, 536, 539, 28 P.2d 627 (1934).

General factors that will be considered are the risk involved, the probability of success, and

the cost involved. Zimmerman v. Ausland, 266 Or. 427, 513 P.2d 1167 (1973).

Punitive Damages

A) In civil actions, punitive damages are not allowed “unless it is proven 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.” OR. REV. STAT. § 31.730(1) (2013).

B) Trial court review. When a jury makes an award of punitive damages it will be reviewed

by the trial court to ensure that it meets statutory, common law, and constitutional

31

standards. Punitive damage awards may be reduced where a defendant demonstrates

remedial measures taken to lessen the likelihood of reoccurrence. Limitations to punitive

damages apply to awards against health care providers and drug manufactures, and

additional standards of proof are required in products liability actions. OR. REV. STAT.

§§ 30.020(2)(3), 31.740, 30.925(2) (2013).

C) Defamation. Punitive damages for defamation have been found unconstitutional. Wheeler

v. Green, 286 Or. 99, 119, 593 P.2d 777 (1979).

Recovery and Pre- and Post-Judgment Interest

A) Pre-judgment interest will generally be awarded when the exact amount is easily

ascertainable by reference to generally recognized standards. Tifft v. Stevens, 162 Or. App.

62, 987 P.2d 1 (1999). In addition, the time from which interest will run must be

ascertainable. Id.

1) Pleadings requirement. In actions at law, a request for pre-judgment interest must

be included in the pleadings. Lithia Lumber Co. v. Lamb, 250 Or. 444, 443 P.2d

647 (1968).

B) Commercial transactions. For commercial transactions, interest awards are governed by

OR. REV. STAT. § 82.010 (2013). It provides that simple interest accrues as of the date of

entry of judgment.

Recovery of Attorney’s Fees

A) Contractual and statutory authority. In Oregon, attorney fees are generally only

available when expressly authorized by the parties’ contract or by statute. Swett v.

Bradbury, 335 Or. 378, 381, 67 P.3d 391 (2003). Attorney fees may be awarded by statute

in the following situations: (1) to a prevailing party in certain tort actions where the amount

pleaded was ten thousand dollars ($10,000.00) or less; (2) to a prevailing party in certain

contract actions where the amount of principal together with interest due on the contract at

the time the claim is filed is ten thousand dollars ($10,000.00) or less; (3) to a property

owner who prevails in an inverse condemnation proceeding; (4) to a prevailing party in

certain proceedings for breach of warranty; (5) to a prevailing plaintiff in a discrimination

action; and (6) against a party who asserted a claim, defense or ground for appeal without

an objectively reasonable basis. See OR. REV. STAT. §§ 20.080(1), .082, .085, .098(1), .105,

.107 (2013). Other statutes and rules of civil procedure provide additional bases for an

award of attorney fees.

B) Court’s authority. Despite the general rule that attorney fees are only available when

expressly authorized by statute or contract, Oregon courts have the inherent authority to

award fees in the absence of such provisions. Deras v. Myers, 272 Or. 47, 66, 535 P.2d

541 (1975). An award of attorney fees under the court’s inherent authority may be made

to the prevailing party in an equitable proceeding. Armatta v. Kitzhaber, 327 Or. 250, 287,

959 P.2d 49 (1998). In addition, the prevailing party “must have been seeking to ‘vindicate

32

an important constitutional right applying to all citizens without any gain peculiar to’” that

party. Id. (internal quotation omitted).

C) Requests. Requests for an award of attorney fees are governed by OR. R. CIV. P. 68 (2014)

and the relevant supplemental local rules. The party seeking attorney fees must allege the

facts, statute, or rule that provides a basis for the award of fees in a pleading ___. The

party need not request a specific amount in fees, but may request that “reasonable attorney

fees” be awarded.

D) Factors. The factors the court must consider in determining whether to award attorney

fees when an award of attorney fees is authorized by a statute are set forth in OR. REV.

STAT. § 20.075(1) (2013). In any case where the award of fees is required by statute, the

court considers those same factors in determining the amount of the award, as well as

additional factors including, but not limited to the time and labor required, the novelty of

the issues presented, the fee customarily charged in the locality for similar services, and

the experience, reputation, and skill of the attorney performing the services. OR. REV.

STAT. § 20.075(2) (2013).

E) Limit. The amount of fees that may be awarded is generally limited to the amount of fees

that the lawyer actually charged the client. Associated Or. Veterans v. DVA, 308 Or. 476,

481, 782 P.2d 418 (1989). Exceptions are made, however, when the client was represented

on a pro-bono or contingent fee basis. See, e.g., Tanner v. OHSU, 161 Or. App. 129, 132-

34, 980 P.2d 186 (1999).

Settlement Involving Minors

A) Settlement agreements are contracts. General problems arising out of a minor’s inability

to contract arise with respect to settlement agreements involving minors. A defendant who

enters into a settlement involving a minor may face the risk of the minor later voiding the

settlement.

B) Guardian ad litem. A guardian ad litem or conservator may have settlement authority

over the claims and defenses a minor may be able to assert. See OR. R. CIV. P. 27 (2014).

Conservators have authority to enter into settlement agreements under OR. REV. STAT.

§ 125.445(21) (2013).

C) Parental authority. A parent has no authority to enter into a settlement with a defendant

on the child’s behalf other than settlements involving payment of less than $10,000.00. See

State v. Fitterer, 109 Or. App. 541, 544, 820 P.2d 841 (1991).

Taxation of Costs

A) Taxation of costs are governed by OR. R. CIV. P. 68 (2014) and the applicable

supplementary local rules. Costs are defined as the “reasonable and necessary expenses in

the prosecution or defense of an action other than for legal services.” Costs include, but

are not limited to, the fees of officers and witnesses, the cost of publication of notices or

33

summons, the postage for serving notices or summons by mail, and the cost of coping any

public record, book, or document admitted in evidence at trial.

B) Prevailing party. OR. R. CIV. P. 68 provides that costs shall be awarded to any prevailing

party unless the rules of civil procedure or a statute direct that such an award is not

permitted in the particular case. Some statutes also specifically provide for an award of

costs. See OR. REV. STAT. §§ 20.085, .096(1), .098, .107, .125 (2013). Other statutes

provide additional bases for an award of costs.

C) Bill of costs. To recover costs, the prevailing party must file a detailed statement of costs

within fourteen (14) days from entry of the judgment. OR. R. CIV. P. 68(C)(4)(a) (2014).

Unique Damages Issues

A) Mental distress. Generally, mental distress damages are not recoverable in negligence

actions unless the plaintiff has suffered some physical injury. See Bennett v. Baugh, 154

Or. App. 397, 961 P.2d 883 (1998). There are exceptions to this general proposition.

B) Economic loss doctrine in construction defect claims. In Oregon, the economic loss

doctrine does not apply to construction defect claims. Harris v. Suniga, 344 Or. 301, 180

P.3d 12 (2013). The economic loss doctrine prohibits a party that has suffered purely

economic loss from bringing a negligence claim against the party who caused the economic

loss in the absence of a special relationship. Id. at 305. Oregon courts have rejected the

application of this doctrine to construction defect claims and a homeowner, therefore, may

proceed against a contractor for the homeowner’s purely economic loss. See id.

C) Unlawful trade practices. Under the Unlawful Trade Practices Act, a person who suffers

any loss of money or property as a result of the use of unlawful trade practices of another

may recover the greater of actual damages or two hundred dollars ($200.00). OR. REV.

STAT. § 646.638(1) (2013). Acts that are specified to be unlawful trade practices are set

forth in OR. REV. STAT. §§ 646.607, .608 (2013).

This Compendium outline contains a brief overview of certain laws concerning various

litigation and legal topics. The compendium provides a simple synopsis of current law and

is not intended to explore lengthy analysis of legal issues. This compendium is provided for

general information and educational purposes only. It does not solicit, establish, or continue

an attorney-client relationship with any attorney or law firm identified as an author, editor

or contributor. The contents should not be construed as legal advice or opinion. While every

effort has been made to be accurate, the contents should not be relied upon in any specific

factual situation. These materials are not intended to provide legal advice or to cover all laws

or regulations that may be applicable to a specific factual situation. If you have matters or

questions to be resolved for which legal advice may be indicated, you are encouraged to

contact a lawyer authorized to practice law in the state for which you are investigating and/or

seeking legal advice.