2015 ORS 31.600¹
Contributory negligence not bar to recovery
  • comparative negligence standard
  • third party complaints

(1) Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense.

(2) The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection. Except for persons who have settled with the claimant, there shall be no comparison of fault with any person:

(a) Who is immune from liability to the claimant;

(b) Who is not subject to the jurisdiction of the court; or

(c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose.

(3) A defendant who files a third party complaint against a person alleged to be at fault in the matter, or who alleges that a person who has settled with the claimant is at fault in the matter, has the burden of proof in establishing:

(a) The fault of the third party defendant or the fault of the person who settled with the claimant; and

(b) That the fault of the third party defendant or the person who settled with the claimant was a contributing cause to the injury or death under the law applicable in the matter.

(4) Any party to an action may seek to establish that the fault of a person should not be considered by the trier of fact by reason that the person does not meet the criteria established by subsection (2) of this section for the consideration of fault by the trier of fact.

(5) This section does not prevent a party from alleging that the party was not at fault in the matter because the injury or death was the sole and exclusive fault of a person who is not a party in the matter. [Formerly 18.470]

(formerly 18.470)

Notes of Decisions

Court has discre­tion to require jury to make special findings assigning percentage of fault to parties. Hammagren v. Wald Construc­tion, Inc., 274 Or 267, 545 P2d 859 (1976)

Ordinary contributory negligence on the part of a guest passenger is a partial de­fense resulting in a diminished recovery rather than in no recovery at all. Johnson v. Tilden, 278 Or 11, 562 P2d 1188 (1977)

Comparative negligence of investor, his spouse, and his guardian could not be used as offset to gross negligence of brokerage firm. Ryan v. Foster & Marshall, Inc., 556 F2d 460 (1977)

Comparative negligence doctrine is not applicable to strict liability situa­tions, for Oregon strict liability rule is not based on theory of negligence. Brown v. Link Belt Corp., 565 F2d 1107 (1977)

Where evidence es­tab­lished that, after collision with truck, train came to rest 135 feet beyond point of impact, reasonable minds could differ over relative fault of parties, and it was not error to submit ques­tion to jury. Resser v. Boise-Cascade Corp., 284 Or 385, 587 P2d 80 (1978)

Under this sec­tion, comparative fault is applicable in strict liability in tort. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

Even though doctrine of implied assump­tion of risk is abolished by [former] ORS 18.475, legislative intent is that con­duct which is sometimes labeled assump­tion of risk but which is subspecies of contributory negligence can be compared in appor­tioning damages. Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979)

Where defendant-sawmill designer alleged contributory negligence and neg­li­gent misuse of product as af­firm­a­tive de­fenses to strict liability, trial court properly struck af­firm­a­tive de­fenses from answer. Holdsclaw v. Warren, 45 Or App 153, 607 P2d 1208 (1980), Sup Ct review denied

An injured per­son's con­duct which in fact is a cause of the injury and which constitutes "fault", including negligence, is to be considered in product liability ac­tions, unless user's alleged negligence consists of the kind of con­duct that goes toward making the product dangerously defective in the first place. Sandford v. Chev. Div. of Gen. Motors, 292 Or 590, 642 P2d 624 (1982); Wilson v. B.F. Goodrich, 292 Or 626, 642 P2d 644 (1982)

It was error to instruct jury that landlord was not liable to invitee for injury from condi­tion whose danger is known or obvious to invitee unless harm could nevertheless be anticipated, because such an instruc­tion imports ele­ments of contributory negligence and is, thus, incompatible with comparative negligence statute. Woolston v. Wells, 63 Or App 7, 663 P2d 408 (1983), aff'd 297 Or 548, 687 P2d 144 (1984)

This sec­tion addresses itself only to those per­sons against whom recovery is sought when case is submitted to trier of fact for comparison of fault. Mills v. Brown, 303 Or 223, 735 P2d 603 (1987)

Because there was evidence offered from which jury might have concluded that plaintiff's injuries were exclusively or primarily result of his failure to fasten his safety belt, and because jury could have found plaintiff's failure to do so was not reasonable under circumstances, jury should have received evidence offered by defendant on issue of safety belt de­fense. Dahl v. BMW, 304 Or 558, 748 P2d 77 (1987)

Failure to use safety belt is not properly ques­tion of failure to mitigate damages and proper method of raising de­fense is through allega­tions of comparative fault. Morast v. James, 304 Or 571, 748 P2d 84 (1987)

Insurer may be vicariously liable for ac­tions of its agents, including counsel it hired to defend its insured. Stumpf v. Continental Casualty Co., 102 Or App 302, 794 P2d 1228 (1990)

Comparative fault applies to ac­tions for gross negligence. DeYoung v. Fallon, 104 Or App 66, 798 P2d 66 (1990), Sup Ct review denied

Under pre-1995 amend­ment version, beneficiaries of wrongful death ac­tion brought by estate are parties to ac­tion. Robinson v. Children's Services Division, 140 Or App 429, 914 P2d 1123 (1996)

In Strict Products Liability Case, Court Must

1) determine as matter of law whether jury could find that defendant has es­tab­lished comparative fault de­fense; and 2) if requested, give instruc­tion limiting type of neg­li­gent con­duct that may be attributed to plaintiff. Hernandez v. Barbo Machinery Co., 327 Or 99, 957 P2d 147 (1998)

Reduc­tion in award for comparative fault of plaintiff is inappropriate where defendant is guilty of willful miscon­duct. Hampton Tree Farms, Inc. v. Jewett, 158 Or App 376, 974 P2d 738 (1999), Sup Ct review denied

Prohibi­tion against making comparison of defendant's fault with fault of per­son who is immune from liability does not prevent considera­tion of con­duct of immune per­son in determining whether con­duct of defendant was substantial factor in causing injury. Lyons v. Walsh and Sons Trucking Co., Ltd., 183 Or App 76, 51 P3d 625 (2002), aff'd on other grounds, 337 Or 319, 96 P3d 1215 (2004)

Inten­tional miscon­duct is not "fault" subject to appor­tion­ment between defendants or between plaintiff and defendant. Shin v. Sunriver Preparatory School, Inc., 199 Or App 352, 111 P3d 762 (2005), Sup Ct review denied

When read with ORS 31.605 (Special questions to trier of fact) and 31.610 (Liability of defendants several only), this sec­tion sets forth comprehensive system for allocating fault between parties and distributing liability for damages severally in accordance with that alloca­tion. Comparative fault system eliminates need for common-law indemnity claim. Eclectic Invest­ment, LLC v. Patterson, 357 Or 25, 346 P3d 468 (2015)

Law Review Cita­tions

8 WLJ 37-53 (1972); 53 OLR 79-81, 84 (1973); 19 WLR 146 (1983); 69 OLR 147 (1990)

  • Ryan Scott, Jan 18, 2013
    “[This peti­tion for review] highlights . . . issues raised by an­oth­er case . . . which is focused on whether restitu­tion is a jury ques­tion. . . . [I]t's a great example of the way a crim­i­nal pros­e­cu­­tion (or juvenile adjudica­tion) becomes a way to circumvent a long-standing constituional guarantee.”

1 Legislative Counsel Committee, CHAPTER 31—Tort Actions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors031.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 31, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano031.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.