72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1289
 
                         House Bill 2497
 
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
  Medical Association)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Modifies laws relating to comparative negligence. Provides
that, for purpose of determining percentages of fault for each
defendant, trier of fact may consider fault of person who is not
subject to jurisdiction of court and fault of person who is not
subject to action because claim is barred by statute of
limitation or statute of ultimate repose.
  Allows defendant in action to elect to withdraw consideration
of fault of person who settled with claimant. Provides that, if
fault of person is withdrawn from consideration, defendant need
not establish fault of person and court must reduce total amount
of damages awarded in action by amounts paid to person in
settlement.
 
                        A BILL FOR AN ACT
Relating to torts; creating new provisions; and amending ORS
  18.470, 18.480 and 18.485.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 18.470 is amended to read:
  18.470. (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 { + , and the fault of any other person who
is not immune from liability to the claimant + }. 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  { + or who has
otherwise not been made a defendant in the action + } 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 - }   { + other + } person   { - who settled with the
claimant - } ; and
  (b) That the fault of the third party defendant or
 { - the - }  { +  other + } person   { - who settled with the
claimant - }  was a contributing cause to the injury or death
under the law applicable in the matter.
   { +  (4) Notwithstanding subsection (2) of this section, if
the claimant has settled with any person in an action subject to
this section, any defendant in the action may elect to withdraw
consideration of the fault of the person from the trier of fact.
If consideration of the fault of a person who settled is
withdrawn from the trier of fact under this section, the
defendant need not establish the fault of the person and the
court shall reduce the total amount of damages awarded in the
action by the amounts paid to the person in settlement before
making the calculation required by ORS 18.485 (2). + }
    { - (4) - }   { + (5) + } 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 - }  { +  is
immune from liability to the plaintiff + }.
    { - (5) - }   { + (6) + } 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.
  SECTION 2. ORS 18.480 is amended to read:
  18.480. (1) When requested by any party the trier of fact shall
answer special questions indicating:
  (a) The amount of damages to which a party seeking recovery
would be entitled, assuming that party not to be at fault.
  (b) The degree of fault of each person   { - specified in - }
 { +  considered by the jury pursuant to  + }ORS 18.470
 { - (2) - } . The degree of each person's fault so determined
shall be expressed as a percentage of the total fault
attributable to all persons considered by the trier of fact
pursuant to ORS 18.470.
  (2) A jury shall be informed of the legal effect of its answer
to the questions listed in subsection (1) of this section.
  (3) The jury shall not be informed of any settlement made by
the claimant for damages arising out of the injury or death that
is the subject of the action.
  (4) For the purposes of subsection (1) of this section, the
court may order that two or more persons be considered a single
person for the purpose of determining the degree of fault of the
persons   { - specified in - }  { +  considered by the jury
pursuant to + } ORS 18.470   { - (2) - } .
  SECTION 3. ORS 18.485 is amended to read:
  18.485. (1) Except as otherwise provided in this section, in
any civil action arising out of bodily injury, death or property
damage, including claims for emotional injury or distress, loss
of care, comfort, companionship and society, and loss of
 
consortium, the liability of each defendant for damages awarded
to plaintiff shall be several only and shall not be joint.
  (2) In any action described in subsection (1) of this section,
the court shall determine the award of damages to each claimant
in accordance with the percentages of fault determined by the
trier of fact under ORS 18.480 and shall enter judgment against
each party determined to be liable. The court shall enter a
judgment in favor of the plaintiff against any third party
defendant who is found to be liable in any degree, even if the
plaintiff did not make a direct claim against the third party
defendant. The several liability of each defendant and third
party defendant shall be set out separately in the judgment,
based on the percentages of fault determined by the trier of fact
under ORS 18.480. The court shall calculate and state in the
judgment a monetary amount reflecting the share of the obligation
of each person   { - specified in - }  { +  considered by the
jury pursuant to + } ORS 18.470   { - (2) - } . Each person's
share of the obligation shall be equal to the total amount of the
damages found by the trier of fact, with no reduction for amounts
paid in settlement of the claim or by way of contribution,
multiplied by the percentage of fault determined for the person
by the trier of fact under ORS 18.480.
  (3) Upon motion made not later than one year after judgment has
become final by lapse of time for appeal or after appellate
review, the court shall determine whether all or part of a
party's share of the obligation determined under subsection (2)
of this section is uncollectible. If the court determines that
all or part of any party's share of the obligation is
uncollectible, the court shall reallocate any uncollectible share
among the other parties.  The reallocation shall be made on the
basis of each party's respective percentage of fault determined
by the trier of fact under ORS 18.480. The claimant's share of
the reallocation shall be based on any percentage of fault
determined to be attributable to the claimant by the trier of
fact under ORS 18.480, plus any percentage of fault attributable
to a person who has settled with the claimant. Reallocation of
obligations under this subsection does not affect any right to
contribution from the party whose share of the obligation is
determined to be uncollectible. Unless the party has entered into
a covenant not to sue or not to enforce a judgment with the
claimant, reallocation under this subsection does not affect
continuing liability on the judgment to the claimant by the party
whose share of the obligation is determined to be uncollectible.
  (4) Notwithstanding subsection (3) of this section, a party's
share of the obligation to a claimant may not be increased by
reason of reallocation under subsection (3) of this section if:
  (a) The percentage of fault of the claimant is equal to or
greater than the percentage of fault of the party as determined
by the trier of fact under ORS 18.480; or
  (b) The percentage of fault of the party is 25 percent or less
as determined by the trier of fact under ORS 18.480.
  (5) If any party's share of the obligation to a claimant is not
increased by reason of the application of subsection (4) of this
section, the amount of that party's share of the reallocation
shall be considered uncollectible and shall be reallocated among
all other parties who are not subject to subsection (4) of this
section, including the claimant, in the same manner as otherwise
provided for reallocation under subsection (3) of this section.
  (6) This section does not apply to:
  (a) A civil action resulting from the violation of a standard
established by Oregon or federal statute, rule or regulation for
the spill, release or disposal of any hazardous waste, as defined
in ORS 466.005, hazardous substance, as defined in ORS 453.005 or
radioactive waste, as defined in ORS 469.300.
 
 
  (b) A civil action resulting from the violation of Oregon or
federal standards for air pollution, as defined in ORS 468A.005
or water pollution, as defined in ORS 468B.005.
  SECTION 4.  { + The amendments to ORS 18.470, 18.480 and 18.485
by sections 1, 2 and 3 of this 2003 Act apply only to actions
commenced as described in ORS 12.020 on or after the effective
date of this 2003 Act. + }
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