Oregon

 

 

Statutes of Limitations (OREGON)

 

Personal Injury - 2 yrs. [O.R.S. § 12.110]

Wrongful Death - 3 yrs. (after injury causing death was discovered or after date of death, whichever comes first) [O.R.S. § 30.020]

Property Damage - 6 yrs. [O.R.S. § 12.080]

Product Liability (involving Personal Injury or Property Damage) - 2 yrs. (after discovery) (3 yrs. if death) [O.R.S. § 30.905]

Contracts (Written and Oral) - 6 yrs. [O.R.S. § 12.080]

Contract for Sale (goods) and Breach of Warranty - 4 yrs. (after tender of delivery) [O.R.S. § 72.7250]

 

Discovery rule cannot be assumed, but must be found in the statute of limitations itself, and whether the statute contains a discovery rule is a matter of legislative intent [Gladhart v. Oregon Vineyard Supply Co., 26 P.3d 817 (Or. 2001)].  Appears to be case-by-case determination.

 

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Statute of Repose (Products) (OREGON)

 

10 yrs. (or the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured) [O.R.S. § 30.905]

 

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Admissibility of Expert Testimony (OREGON)

 

Daubert test is instructive.  A trial court, faced with a proffer of expert scientific testimony, must determine whether the proposed evidence is based on scientifically valid principles and is pertinent to the issue to which it is directed. The proponent of the evidence has the burden of establishing those matters by a preponderance of the evidence.  A key question to be answered in determining whether a theory or technique is scientific knowledge is whether it can be (and has been) tested [State v. O'Key, 899 P.2d 663 (Or. 1995)].

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Causes of Action (OREGON)

 

Statutory definition – “Product liability civil action” means a civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of: (1) any design, inspection, testing, manufacturing or other defect in a product; (2) any failure to warn regarding a product; or (3) any failure to properly instruct in the use of a product [ORS § 30.900].  The statute embraces all product liability theories [Brokenshire v. Rivas & Rivas, 922 P.2d 696 (Or. Ct. App. 1996)].

 

Strict Liability – Statutory definition: one who sells or leases any product in a defective condition unreasonably dangerous to the user (or to the property) is subject to liability for physical harm or damage to property caused by that condition if: (1) the seller or lessor is engaged in the business of selling or leasing such a product; and (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased [ORS § 30.920].  It is the intent of the Legislative Assembly that this be construed in accordance with the Rest. (2nd) of Torts, 402A, Comments "a" to "m" [Id.].

 

Negligence – In a cause of action based on negligence, the question involves the manufacturer's conduct, that is, whether the manufacturer's conduct was reasonable in view of the foreseeable risk of injury, whereas in a cause of action based on strict liability in tort, the question involves the quality of the manufactured product, that is, whether the product was unreasonably dangerous [Hoyt v. Vitek, 134 Ore. App. 271 (Or. Ct. App. 1995)].

 

Breach of Warranty – Oregon has adopted the standard UCC express warranty [ORS § 72.3130]; implied warranty of merchantability [ORS § 72.3140]; implied warranty of fitness for particular purpose [ORS § 72.3150].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of the buyer or who is a guest in the home of the buyer if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [ORS § 72.3180].  Privity of contract is not required for an express-warranty action for economic loss [Larrison v. Moving Floors, 873 P.2d 1092 (Or. Ct. App. 1994)].

 

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Definition of “Defect” (OREGON)

 

The product sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics [McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App. 1999)].

 

It is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dangerous for its intended use [ORS § 30.910].

 

Oregon adheres to the consumer expectation test as the standard for determining strict products liability in manufacturing and design defect cases [McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App. 1999)]. 

 

Also, see discussion below re: design defects.

 

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Liability of Sellers (OREGON)

 

Sellers and lessors are strictly liable under the statute [ORS § 30.92].  For liability to apply, said individuals must be engaged in the business of selling/leasing such products.

 

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Defenses (OREGON)     

 

Comparative Negligence – Oregon follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [O.R.S. § 31.600].  Applies to strict product liability cases [Hernandez v. Barbo Mach. Co., 957 P.2d 147 (Or. 1997)].

 

Assumption of Risk – Complete defense is Plaintiff discovers a defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of a product and is injured by it [Hernandez v. Barbo Mach. Co., 957 P.2d 147 (Or. 1997)].

 

Product Alteration/Modification – A defense to a product liability if: (1) the alteration/modification was made without the consent of (or was made not in accordance with the instructions or specifications of) Defendant; (2) the alteration/modification was a substantial contributing factor to the harm caused; and (3) if the alteration/modification was reasonably foreseeable, Defendant gave adequate warning [ORS § 30.915].

 

Product Misuse – Bars recovery if the use is so unusual that the average consumer could not reasonably expect the product to be designed and manufactured to withstand it (and, therefore, the use which Defendant need not anticipate and provide for) [Findlay v. Copeland Lumber Co., 509 P.2d 28 (Or. 1973)].

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (OREGON)

 

For Plaintiff to recover for negligence causing purely economic loss, Plaintiff would have to show some source of duty outside the common law of negligence, such as a special relationship or status that imposed a duty on Defendant beyond the common-law negligence standard [Harris v. Suniga, 180 P.3d 12 (Or. 2008)].

 

However, strict liability of manufacturer is independent of contractual privity and extends to remote (but foreseeable) buyers/users within range of danger created by defective condition. If Plaintiff in a products liability action is able to trace damage to seller’s negligence, he may recover for economic losses of a kind that the seller should have been able to foresee. Where a defective axle assembly caused a pickup truck to leave the road and turn over, even though no person or other property was injured, damages to truck itself were recoverable under strict liability theory [Russell v. Ford Motor Co., 575 P.2d 1383 (Or. 1978)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (OREGON)

 

When it is shown that a product failed to meet the reasonable expectations of the user the inference is that there was some sort of defect, a precise definition of which is unnecessary [Quirk v. Ross, 476 P.2d 559 (Or. 1970)].

 

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Design Defects (OREGON)                                                                                                

 

The statutory definition of “product liability civil action” includes “any design, inspection, testing” [ORS § 30.900]. 

 

The user of a product has the right to expect a reasonably safe design. [McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App. 1999)].

 

Oregon adheres to the consumer expectation test as the standard for determining strict products liability in manufacturing and design defect cases.  The product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics.  Therefore, to establish a defective design, Plaintiff must prove: (1) what an ordinary consumer would expect from the allegedly defective product; and (2) that the product failed to meet those expectations [McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App. 1999)].

 

Where the performance failure occurs under conditions with which the average person has experience, the facts of the accident alone may constitute a sufficient basis for the jury to decide whether the expectations of an ordinary consumer of the product were met. At the same time, there are cases where consumer expectation may be beyond a juror’s common experience.  A plaintiff in a defective design case can also proceed under either a representational theory, a consumer risk-utility theory, or both.  Proof of a safer practicable alternative is immaterial to the “representational” formulation of the consumer expectation test. That formulation is concerned solely with the manufacturer’s representations and consumers’ consequent expectations.  Alternative designs, whether practicably available or not, are inapposite to that inquiry. Conversely, proof of a practicable safer alternative design is integral to the “consumer risk-utility” approach.  In complex cases where practicability cannot be properly weighed solely on the basis of inference and common knowledge, it is not proper to submit the case to the jury unless the court is satisfied that there is evidence from which the jury could find the suggested alternatives are not only technically feasible but also practicable in terms of cost and the overall design and operation of the product [McCathern v. Toyota Motor Corp., 985 P.2d 804 (Or. Ct. App. 1999)].

 

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Failure to Warn (OREGON)

 

The statutory definition of “product liability civil action” includes “any failure to warn regarding a product” and “any failure to properly instruct in the use of a product” [ORS § 30.900].

 

The adequacy of a warning in a product liability action is ordinarily a jury question [Lavoie v. Power Auto, Inc., 312 P.3d 601 (Or. Ct. App. 2013)].

 

A product, although faultlessly made, may nevertheless be deemed “defective” and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.  To be adequate, a warning must embody two characteristics: (1) it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; and (2) the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person [Anderson v. Klix Chemical Co., 472 P.2d 806 (Or. 1970)].

 

If a plaintiff's injury is caused by plaintiff's use of the product contrary to directions or warnings, recovery is barred [Anderson v. Klix Chemical Co., 472 P.2d 806 (Or. 1970)].

 

A manufacturer/seller is not required to warn or instruct with regard to a danger which is generally known and recognized. Where an adequate warning or instruction is given, the manufacturer or seller may reasonably assume that it will be read and heeded, and a product bearing such a warning or instruction, which is safe for use if it is followed, is not in a defective condition nor is it unreasonably dangerous [Gunstone v. Julius Blum GMbH.a-6873, 825 P.2d 1389 (Or. Ct. App. 1992)].

 

Defendant must give warning if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the danger [Hoyt v. Vitek, 894 P.2d 1225 (Or. Ct. App. 1995)].

 

 

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Independent Cause of Action for Evidence Spoliation (OREGON)

 

Oregon law does not and “would not” recognize a tort of intentional spoliation of evidence [Blincoe v. Western States Chiropractic College, 2007 WL 2071916 (D. Or. 2007) - unpublished decision)].