This post authored by E. J. Simmons, who regularly deals with negligence issues in his practice as a personal injury attorney in Portland, Oregon.
Every injury case must deal with any negligent conduct by the injured person. Some clients feel responsible for the slightest mistake in the events leading up to the injuries, and wonder if their lack of perfection means no settlement will be recovered. The insurance adjuster and the defense attorney usually will try to show that the injured party did something that contributed to causing the injuries.
When the law of negligence developed, there was a complete defense of contributory negligence. This legal doctrine required that any negligent conduct by the injured party would prevent any recovery. For example, if the injured party was ten percent negligent and the defendant was 90 percent negligent, then the injured party received nothing. This was the outcome even if the greater negligence by the defendant caused death or devastating injury.
This unfair result has led the majority of states to abolish contributory negligence in favor of comparative fault.
Unfair old law in a few states
In a few states and the District of Columbia, the unfair old doctrine of contributory negligence is still in effect. These holdout jurisdictions are Virginia, North Carolina, Maryland, Alabama and the District of Columbia.
All other states have one of the forms of comparative negligence.
In Oregon, the legislature abolished both contributory negligence and the related doctrine of implied assumption of the risk as defenses and has replaced them with comparative fault. See ORS 31.600 (formerly ORS 18.470) abolishing contributory negligence standard and replacing it with a comparative fault system:
Oregon Revised Statutes 31.600 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.
In Oregon, the statute set out above means that an injured party who is for example 10 percent at fault will have the award reduced by 10 percent. In addition, if the injured person is over 50 percent at fault, the injured party will lose. This percentage is set by the jury.
ORS 31.620 (formerly ORS 18.475) abolished the doctrine of implied assumption of the risk. Implied assumption of the risk was an indirect way for defendants to argue contributory negligence. The doctrine of last clear chance was used by plaintiffs to avoid the harsh result of contributory negligence.
Oregon Revised Statutes 31.620 Doctrines of last clear chance and implied assumption of risk abolished. (1) The doctrine of last clear chance is abolished.
(2) The doctrine of implied assumption of the risk is abolished.
Comparative fault will not apply to a workers compensation claim but it will apply to construction job site accident claims beyond the workers compensation claim, such as an Employer Liability Law claim or a premises liability claim.
In a wrongful death claim, the comparative fault percentage allocated by the jury will be that of the person who was killed.
Juries try to be fair
In those states with the old contributory negligence standard, personal injury attorneys will use the last clear chance doctrine. The injured party made a lesser mistake, and the defendant then had the last clear chance to avoid causing the injuries. Juries try to be fair; in those jurisdictions with the unfair older law juries are very receptive to the last clear chance issue so that an injured person can have a recovery.
In the states with the majority doctrine, including Oregon, the jury can be fair to all parties by allocating fault percentages when the jury decides the verdict, and also deciding the amount of damages.
For questions please call or email.