Santa’s 2016 Naughty/Nice List


By Allen Eraut

Santa’s 2016 Naughty/Nice List 

(assuming Santa is a defense lawyer for the other 11 months of the year):

Nice: Damages Caps. Horton v. OHSU was the biggest case of the year, reversing decades of jurisprudence on the Oregon Tort Claims Act damages cap. Horton appeared to breathe new life into Oregon’s $500,000 noneconomic damages cap as well, and we should hear more from the court on this in 2017.

Naughty: “Impact Rule.” Getting in just under the wire, the Oregon Supreme Court ruled on December 22 that bystanders may recover emotional distress damages for witnessing an injury to a family member even if the bystanders do not sustain a physical injury. Oregon used to follow the “impact rule” which required that a plaintiff receive a physical injury from the defendant before asserting a claim for emotional distress. The court in Philibert v. Kluser ( abandoned the impact rule, and even declined to adopt the less strict “zone of danger” rule that would allow emotional distress claims if the plaintiff was personally in danger of physical harm. The court elected to follow the test in Restatement (Third) of Torts section 48 (2012) which allows a claim for emotional distress if the plaintiff (1) perceives the event contemporaneously; and (2) is a close family member of the person suffering the bodily injury. This case allows a broader class of plaintiffs to bring claims for damages.

Nice: statutory Dram Shop claims. Before 2016, plaintiffs would regularly bring statutory claims for violations of Oregon’s Liquor Liability Act. But in Deckard v. Bunch, the court held that the Act does not create a private right of action. Instead, a plaintiff claiming that a defendant served a visibly intoxicated person can typically only bring a common law negligence claim.

Nice: Statute of Repose. Shell v. Schollander Companies, Inc. broke a disappointing trend in construction cases by actually dismissing a claim under the ten-year statute of repose in ORS 12.115. Defendants with construction contracts will still be stuck with the more plaintiff-friendly repose period in ORS 12.135(1), but developers who build and sell their own homes have a better chance on summary judgment now.

Naughty: bare metal defense. Oregon used to follow its neighbors California and Washington in limiting a product liability claim to those products that the defendant manufactured or sold. But in McKenzie v. A.W. Chesterton, an asbestos case, the court blazed a new trail for Oregon. It held that a product seller can be liable for defects in component parts sold by third parties that the defendant can foresee will be used with the defendant’s larger product. This case has significant implications for asbestos claims, but also broadens liability for all product defendants.

Nice: statute of limitations. For years, Oregon construction lawyers could not answer the question: “what is the statute of limitations for negligent construction?” Now we can. Goodwin v. Kingsman Plastering applied a two-year limitation period with a discovery rule found in ORS 12.110.


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