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NEGLIGENCE
In order to support a claim for negligence in the absence of a “special relationship” between the plaintiff and the defendant in an Oregon Personal Injury cases, a personal Injury claimant must show that the defendant's actions created a reasonably foreseeable risk of harm, including personal injury, to the plaintiff. What is deemed “reasonably foreseeable” for the purposes of establishing liability is quite broad and may even extend to negligent maintenance by a prior vehicle owner.
Bailey v. Lewis Farm, Inc., in the Supreme Court of the State of Oregon (October 11, 2007). Jerome Bailey was injured when the rear axle assembly broke loose from a passing semi-truck, causing the dual wheels and tires to come off and collide with his vehicle causing personal injury. Bailey sued several parties, including May Trucking Company (May), who was the former owner of the truck, alleging that it was negligent in driving the truck for more than 500,000 miles without performing necessary maintenance on the rear axle. May moved to dismiss the complaint against it for failure to state a claim, arguing that it was not liable in negligence as a matter of law because it had sold the truck more than a year before the collision and exercised no control over it since that time. The trial court agreed and granted May’s motion to dismiss for failure to state a claim. Bailey appealed. The Oregon Court of Appeals met en banc (i.e. all ten judges heard the case) and split 5 to 5 on whether the plaintiff stated a valid negligence claim under Oregon law. The effect of the split decision was that the trial court's decision was affirmed without producing a majority opinion to cite as authority in future cases. The Oregon Supreme Court allowed review to consider the issue. Although the Court appeared to conclude that that it might be difficult for Bailey to actually prove that May was liable for his personal injuries given the known facts of this case, it nonetheless held that the allegations in Bailey’s complaint did state a claim for negligence; namely, that May failed to clean and repack the truck’s axle wheel bearings every 25,000 miles, and to perform a more detailed cleaning and inspection every 100,000 miles as recommended by the truck’s manufacturer. In fact, Bailey’s complaint alleged that May performed only one of the recommended 20 maintenance services to the axle bearings. Noting that if May had negligently maintained the axle when it owned it, and if that negligent maintenance was a substantial contributing cause of Bailey’s injury (as his complaint alleged), a reasonable jury could find the failure of the trailer’s axle, the loss of its wheels, and the resulting injuries to be foreseeable. In short, the Court held that the mere fact that May had not owned the trailer for more than a year prior to the collision did not necessarily excuse it, as a matter of law, from the consequences of its alleged prior negligence.
Comparative Fault
Plaintiff is barred from recovery if more than 50% at fault. Defendant may not compare his or her fault to those immune from liability, those not subject to the court’s jurisdiction, or those barred by a statute of limitations.
Joint and Several Liability:
Defendants are severally, not jointly, liable for damages, unless: No later than one year after the judgment has become final, the court determines that all or part of any party’s share of the obligation is un collectible. In that event, the court reallocates the un collectible share among the other parties.
A party’s share of the obligation cannot be increased if the claimant’s percentage of fault is equal to or greater than the percentage of fault of the party, or the party’s percentage is 25% or less.
COMPARATIVE FAULT FOR FAILURE TO WEAR SEATBELTS
Many of us assume that there is no comparative fault in Oregon Personal Injury Trials for failure to wear a seatbelt, and the best we can do is a 5% “mitigation” of damages. There are, however, some circumstances where this limitation may not apply and comparative fault will.
The provisions of ORS 31.760(1) are familiar to most adjusters. It says:
In an Oregon Personal Injury action brought to recover damages for personal injuries arising out of a motor vehicle collision, evidence of the nonuse of a safety belt or harness may be admitted only to mitigate the injured party's damages. The mitigation shall not exceed five percent of the amount to which the injured party would otherwise be entitled.
Subsection (2) provides that that this restriction does not apply to Oregon Personal Injury product liability claims or to claims in which the nonuse of safety belt is a substantial contributing cause of the collision itself.
What about the Oregon Personal Injury case where the claimant is lying down on the back seat without a seat belt? Or where the claimant is sitting on another person’s lap without the benefit of a seatbelt? A 1991 case, Anderson v. Loomis, 110 Or App 396, says that there are situations in which comparative fault, in addition to the 5% mitigation, can apply.
The plaintiff in Anderson, a logger, was injured while a passenger in a truck. He had been wearing both the lap belt and shoulder harness but before the collision had unhooked his shoulder harness in order to lean forward to unlace his boots. He was in that position, with his head close to the dash and windshield, when the collision happened. His head hit the windshield and he sustained neck injuries.
In addition to seeking mitigation for failure to wear the shoulder harness, defendant alleged comparative fault on the part of plaintiff in “positioning himself * * * so that he was leaning forward toward the dash and unlacing his boots.” The jury found plaintiff 40% at fault and assessed 3% mitigation of damages. The Court of Appeals agreed with the trial court that a person may be held negligent for placing himself in a dangerous position. The Court further held that a person may be found negligent for so positioning himself whether or not a seat belt is worn, such as when a person lean or sits in such a way as to be closer to the dash, windows, or some other unforgiving vehicle surface.
Common Legal Terms The Civil Justice System Case and Trial Process Tort Law Negligence You are invited to contact Joe Durkee today for a free consultation-
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DISCLAIMER
Oregon Personal Injury Lawyer / Attorney Web sites, including this one, provide general information but do not provide Oregon Personal Injury Attorney / Lawyer legal advice. Consult an experienced Oregon Personal Injury lawyer / attorney who handles car collision injury,injury, bike collision injury, bicycle collision injury for Oregon Personal Injury advice about specific Oregon personal injury claims or Oregon personal injury cases. Remember that virtually all Oregon personal injury, car injury, motorcycle injury, bike injury, bicycle injury, wrongful death and premises injury claims and lawsuits are time sensitive. So, don't delay in seeking Oregon Personal Injury Lawyer / Attorney advice by a qualified Oregon Personal Injury Lawyer / Attorney in Oregon. Oregon Personal Injury attorneys / lawyers are governed by the Oregon Code of Professional Responsibility. If you have been been injured in an automobile, auto, car, bike, bicycle, motorcycle, moped, bicycle or truck related collision causing injury, consider Oregon lawyer / attorney Joe Durkee. This web site may be considered an advertisement for services under the Oregon Code of Professional Responsibility. Mr. Durkee is an Oregon Personal Injury attorney / lawyer handling car collision, auto collision, automobile collision, motorcycle collision, moped collision, bike and bicycle collisions in Oregon land does not seek cases outside of the State of Oregon.
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