75th OREGON LEGISLATIVE ASSEMBLY--2009 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 205
House Bill 2286
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary)
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.
Increases amount of noneconomic damages that may be awarded in
civil action seeking damages arising out of bodily injury.
Corrects inaccurate reference for definition.
A BILL FOR AN ACT
Relating to damages; creating new provisions; and amending ORS
30.298, 30.650, 31.360, 31.705, 31.710, 31.715, 124.100,
137.103, 260.532 and 742.544.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 31.710 is amended to read:
31.710. (1) Except for claims subject to ORS 30.260 to 30.300
and ORS chapter 656, in any civil action seeking damages arising
out of bodily injury, including emotional injury or distress,
death or property damage of any one person including claims for
loss of care, comfort, companionship and society and loss of
consortium, the amount awarded for noneconomic damages
{ - shall - } { + as defined in ORS 31.705 may + } not exceed
{ - $500,000 - } { + $550,000 + }.
{ - (2) As used in this section: - }
{ - (a) 'Economic damages' means objectively verifiable
monetary losses including but not limited to reasonable charges
necessarily incurred for medical, hospital, nursing and
rehabilitative services and other health care services, burial
and memorial expenses, loss of income and past and future
impairment of earning capacity, reasonable and necessary expenses
incurred for substitute domestic services, recurring loss to an
estate, damage to reputation that is economically verifiable,
reasonable and necessarily incurred costs due to loss of use of
property and reasonable costs incurred for repair or for
replacement of damaged property, whichever is less. - }
{ - (b) 'Noneconomic damages' means subjective, nonmonetary
losses, including but not limited to pain, mental suffering,
emotional distress, humiliation, injury to reputation, loss of
care, comfort, companionship and society, loss of consortium,
inconvenience and interference with normal and usual activities
apart from gainful employment. - }
{ - (3) - } { + (2) + } This section does not apply to
punitive damages.
{ - (4) - } { + (3) + } The jury shall not be advised of
the limitation set forth in this section.
SECTION 2. { + The amendments to ORS 31.710 by section 1 of
this 2009 Act apply to causes of action that arise on or after
the effective date of this 2009 Act. + }
SECTION 3. ORS 31.705 is amended to read:
31.705. { + (1) + } A verdict shall set forth separately
economic damages and noneconomic damages { - , if any, as
defined in ORS 31.710 - } .
{ + (2) As used in this section:
(a) 'Economic damages' means objectively verifiable monetary
losses including but not limited to reasonable charges
necessarily incurred for medical, hospital, nursing and
rehabilitative services and other health care services, burial
and memorial expenses, loss of income and past and future
impairment of earning capacity, reasonable and necessary expenses
incurred for substitute domestic services, recurring loss to an
estate, damage to reputation that is economically verifiable,
reasonable and necessarily incurred costs due to loss of use of
property and reasonable costs incurred for repair or for
replacement of damaged property, whichever is less.
(b) 'Noneconomic damages' means subjective, nonmonetary losses,
including but not limited to pain, mental suffering, emotional
distress, humiliation, injury to reputation, loss of care,
comfort, companionship and society, loss of consortium,
inconvenience and interference with normal and usual activities
apart from gainful employment. + }
SECTION 4. ORS 30.298 is amended to read:
30.298. (1) Except as otherwise provided in this section, the
Department of Human Services is liable, without regard to fault,
for injury to the person of foster parents or damage to the
property of foster parents caused by a foster child if the foster
child is residing in:
(a) A foster home that is maintained by the foster parents and
that has been certified by the department under the provisions of
ORS 418.625 to 418.645;
(b) An approved home that is maintained by the foster parents
and that is receiving payment from the department under the
provisions of ORS 418.027 or under the provisions of ORS 420.810
and 420.815; or
(c) A developmental disability child foster home that has been
certified by the department under the provisions of ORS 443.830
and 443.835.
(2) Except as otherwise provided in this section, the Oregon
Youth Authority is liable, without regard to fault, for injury to
the person of foster parents or damage to the property of foster
parents caused by a youth offender if the youth offender resides
in a youth offender foster home that is maintained by the foster
parents and that has been certified by the authority under the
provisions of ORS 420.888 to 420.892.
(3) Except as otherwise provided in this section, the liability
of the department and of the authority under this section is
subject to the same requirements and limitations provided in ORS
30.260 to 30.300, and a claim under this section shall be treated
as a claim for damages within the scope of ORS 30.260 to 30.300
for the purposes of ORS 278.120.
(4) Notwithstanding ORS 30.260 to 30.300:
(a) In no event shall the liability of the department or the
authority under this section exceed $5,000 for any number of
claims arising out of a single occurrence;
(b) The liability of the department and the authority under
this section is limited to economic damages, and in no event
shall the department or the authority be liable for noneconomic
damages;
(c) The department and the authority are liable under this
section only to the extent the loss is not covered by other
insurance; and
(d) No claim shall be allowed under this section unless written
notice of the claim is delivered to the Oregon Department of
Administrative Services within 90 days after the alleged loss or
injury.
(5) The department and the authority are not liable under this
section for:
(a) Damage to or destruction of currency, securities or any
other intangible property;
(b) The unexplained disappearance of any property; or
(c) Loss or damage that is due to wear and tear, inherent vice
or gradual deterioration.
(6) In no event does the liability of the department or the
authority under this section for damage to property exceed the
difference between the fair market value of the property
immediately before its damage or destruction and its fair market
value immediately thereafter. The department and the authority
are not liable for the costs of any betterments to the property
that may be required by code, statute or other law as a condition
of repair, replacement or reconstruction.
(7) The liability imposed under this section is in addition to
that imposed for the intentional torts of a foster child or youth
offender under ORS 30.297, but any amounts paid under this
section shall reduce any recovery that may be made under ORS
30.297.
(8) For the purposes of this section:
(a) 'Authority' means the Oregon Youth Authority.
(b) 'Department' means the Department of Human Services.
(c) 'Economic damages' and 'noneconomic damages' have those
meanings given in ORS { - 31.710 - } { + 31.705 + }.
(d) 'Foster child' has that meaning given in ORS 30.297.
(e) 'Youth offender' has the meaning given in ORS 419A.004.
SECTION 5. ORS 30.650 is amended to read:
30.650. Noneconomic damages, as defined in ORS { - 31.710 - }
{ + 31.705 + }, may not be awarded to an inmate in an action
against a public body unless the inmate has established that the
inmate suffered economic damages, as defined in ORS
{ - 31.710 - } { + 31.705 + }.
SECTION 6. ORS 31.360 is amended to read:
31.360. (1) For the purpose of establishing a claim for
economic damages, as defined in ORS { - 31.710 - } { +
31.705 + }, in an action arising from an injury caused by a dog:
(a) The plaintiff need not prove that the owner of the dog
could foresee that the dog would cause the injury; and
(b) The owner of the dog may not assert as a defense that the
owner could not foresee that the dog would cause the injury.
(2) This section does not prevent the owner of a dog that
caused an injury from asserting that the dog was provoked, or
from asserting any other defense that may be available to the
owner.
(3) This section does not affect the requirements for an award
of punitive damages provided in ORS 31.730 (1).
SECTION 7. ORS 31.715 is amended to read:
31.715. (1) Except as provided in this section, a plaintiff may
not recover noneconomic damages, as defined in ORS
{ - 31.710 - } { + 31.705 + }, in any action for injury or
death arising out of the operation of a motor vehicle if the
plaintiff was in violation of ORS 806.010 or 813.010 at the time
the act or omission causing the death or injury occurred. A claim
for noneconomic damages shall not be considered by the jury if
the jury determines that the limitation on liability established
by this section applies to the claim for noneconomic damages.
(2) For the purpose of the limitation on liability established
by this section, a person is conclusively presumed to have been
in violation of ORS 806.010 or 813.010 if the person is convicted
in a criminal proceeding of one or both of those offenses. If the
person has not been convicted of violating ORS 806.010 or
813.010, the defendant in the civil action may establish in the
civil action, by a preponderance of the evidence, that the
plaintiff was in violation of ORS 806.010 or 813.010 at the time
the act or omission causing the death or injury occurred.
(3) The court shall abate a civil action upon the motion of any
defendant in the civil action against whom a plaintiff has
asserted a claim for noneconomic damages if the defendant alleges
that the claim of the plaintiff is subject to the limitation on
liability established by this section and:
(a) A criminal proceeding for a violation of ORS 813.010 has
been commenced against the plaintiff in the civil action at the
time the motion is made; or
(b) The district attorney for the county in which the conduct
occurred informs the court at the time the motion is made that
criminal proceedings for a violation of ORS 813.010 will be
commenced against the plaintiff in the civil action.
(4) The court may order that only the claim that is subject to
the limitation on liability established by this section be abated
under subsection (3) of this section. An abatement under
subsection (3) of this section shall remain in effect until the
conclusion of the criminal proceedings.
(5) The limitation on liability established by this section
does not apply if:
(a) The defendant in the civil action was also in violation of
ORS 806.010 or 813.010 at the time the act or omission causing
the death or injury occurred;
(b) The death or injury resulted from acts or omissions of the
defendant that constituted an intentional tort;
(c) The defendant was engaged in conduct that would constitute
a violation of ORS 811.140 at the time the act or omission
causing the death or injury occurred; or
(d) The defendant was engaged in conduct that would constitute
a felony at the time the act or omission causing the death or
injury occurred.
(6) The limitation on liability established by this section
based on a violation of ORS 806.010 does not apply if the
plaintiff in the civil action was insured under a motor vehicle
liability insurance policy within 180 days before the act or
omission occurred, and the plaintiff has not operated a motor
vehicle in violation of ORS 806.010 within the one-year period
immediately preceding the date on which coverage under the motor
vehicle liability insurance policy lapsed.
SECTION 8. ORS 137.103 is amended to read:
137.103. As used in ORS 137.101 to 137.109, 161.675 and
161.685:
(1) 'Criminal activities' means any offense with respect to
which the defendant is convicted or any other criminal conduct
admitted by the defendant.
(2) 'Economic damages':
(a) Has the meaning given that term in ORS { - 31.710 - }
{ + 31.705 + }, except that 'economic damages' does not include
future impairment of earning capacity; and
(b) In cases involving criminal activities described in ORS
163.263, 163.264 or 163.266, includes the greater of:
(A) The value to the defendant of the victim's services as
defined in ORS 163.261; or
(B) The value of the victim's services, as defined in ORS
163.261, computed using the minimum wage established under ORS
653.025 and the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.).
(3) 'Restitution' means full, partial or nominal payment of
economic damages to a victim. Restitution is independent of and
may be awarded in addition to a compensatory fine awarded under
ORS 137.101.
(4) 'Victim' means:
(a) The person against whom the defendant committed the
criminal offense, if the court determines that the person has
suffered economic damages as a result of the offense.
(b) Any person not described in paragraph (a) of this
subsection whom the court determines has suffered economic
damages as a result of the defendant's criminal activities.
(c) The Criminal Injuries Compensation Account, if it has
expended moneys on behalf of a victim described in paragraph (a)
of this subsection.
(d) An insurance carrier, if it has expended moneys on behalf
of a victim described in paragraph (a) of this subsection.
(5) 'Victim' does not include any coparticipant in the
defendant's criminal activities.
SECTION 9. ORS 124.100 is amended to read:
124.100. (1) As used in ORS 124.100 to 124.140:
(a) 'Elderly person' means a person 65 years of age or older.
(b) 'Financially incapable' has the meaning given that term in
ORS 125.005.
(c) 'Incapacitated' has the meaning given that term in ORS
125.005.
(d) 'Person with a disability' means a person with a physical
or mental impairment that:
(A) Is likely to continue without substantial improvement for
no fewer than 12 months or to result in death; and
(B) Prevents performance of substantially all the ordinary
duties of occupations in which an individual not having the
physical or mental impairment is capable of engaging, having due
regard to the training, experience and circumstances of the
person with the physical or mental impairment.
(e) 'Vulnerable person' means:
(A) An elderly person;
(B) A financially incapable person;
(C) An incapacitated person; or
(D) A person with a disability who is susceptible to force,
threat, duress, coercion, persuasion or physical or emotional
injury because of the person's physical or mental impairment.
(2) A vulnerable person who suffers injury, damage or death by
reason of physical abuse or financial abuse may bring an action
against any person who has caused the physical or financial abuse
or who has permitted another person to engage in physical or
financial abuse. The court shall award the following to a
plaintiff who prevails in an action under this section:
(a) An amount equal to three times all economic damages, as
defined in ORS { - 31.710 - } { + 31.705 + }, resulting from
the physical or financial abuse, or $500, whichever amount is
greater.
(b) An amount equal to three times all noneconomic damages, as
defined by ORS { - 31.710 - } { + 31.705 + }, resulting from
the physical or financial abuse.
(c) Reasonable attorney fees incurred by the plaintiff.
(d) Reasonable fees for the services of a conservator or
guardian ad litem incurred by reason of the litigation of a claim
brought under this section.
(3) An action may be brought under this section only by:
(a) A vulnerable person;
(b) A guardian, conservator or attorney-in-fact for a
vulnerable person;
(c) A personal representative for the estate of a decedent who
was a vulnerable person at the time the cause of action arose; or
(d) A trustee for a trust on behalf of the trustor or the
spouse of the trustor who is a vulnerable person.
(4) An action may be brought under this section only for
physical abuse described in ORS 124.105 or for financial abuse
described in ORS 124.110.
(5) An action may be brought under this section against a
person for permitting another person to engage in physical or
financial abuse if the person knowingly acts or fails to act
under circumstances in which a reasonable person should have
known of the physical or financial abuse.
(6) A person commencing an action under this section must serve
a copy of the complaint on the Attorney General within 30 days
after the action is commenced.
SECTION 10. ORS 260.532 is amended to read:
260.532. (1) No person shall cause to be written, printed,
published, posted, communicated or circulated, any letter,
circular, bill, placard, poster, photograph or other publication,
or cause any advertisement to be placed in a publication, or
singly or with others pay for any advertisement, with knowledge
or with reckless disregard that the letter, circular, bill,
placard, poster, photograph, publication or advertisement
contains a false statement of material fact relating to any
candidate, political committee or measure.
(2) As used in subsection (1) of this section, 'cause' does not
include the broadcast of an advertisement by a radio or
television station or cable television company unless the
advertisement is for:
(a) The candidacy of the owner, licensee or operator of the
station or company; or
(b) A ballot measure of which a chief petitioner is the owner,
licensee or operator of the station or company.
(3) A candidate who knows of and consents to a publication or
advertisement prohibited by this section with knowledge or with
reckless disregard that it contains a false statement of material
fact, violates this section regardless of whether the candidate
has participated directly in the publication or advertisement.
(4) There is a rebuttable presumption that a candidate knows of
and consents to any publication or advertisement prohibited by
this section caused by a political committee over which the
candidate exercises any direction and control.
(5) Any candidate or political committee aggrieved by a
violation of this section shall have a right of action against
the person alleged to have committed the violation. The aggrieved
party may file the action in the circuit court for any county in
this state in which a defendant resides or can be found or, if
the defendant is a nonresident of this state, in the circuit
court for any county in which the publication occurred. To
prevail in such an action, the plaintiff must show by clear and
convincing evidence that the defendant violated subsection (1) of
this section.
(6) A plaintiff who prevails in an action provided by
subsection (5) of this section may recover economic and
noneconomic damages, as defined in ORS { - 31.710 - } { +
31.705 + }, or $2,500, whichever is greater. The court may award
such additional equitable relief as it considers necessary or
proper. The equitable relief may include, but is not limited to,
a requirement that a retraction of the false statement be
disseminated in the manner directed by the court. Proof of
entitlement to economic and noneconomic damages must be by a
preponderance of evidence. The court shall award the prevailing
party reasonable attorney fees at trial and on appeal.
(7) A political committee has standing to bring an action
provided by subsection (5) of this section as plaintiff in its
own name, if its purpose as evidenced by its preelection
activities, solicitations and publications has been injured by
the violation and if it has fully complied with the provisions of
this chapter. In an action brought by a political committee as
provided by subsection (5) of this section, the plaintiff may
recover economic and noneconomic damages for all injury to the
purpose of the committee as provided in subsection (6) of this
section.
(8) If a judgment is rendered in an action under this section
against a defendant who has been nominated to public office or
elected to a public office other than state Senator or state
Representative, and it is established by clear and convincing
evidence that the false statement was deliberately made or caused
to be made by the defendant, the finder of fact shall determine
whether the false statement reversed the outcome of the election.
If the finder of fact finds by clear and convincing evidence that
the false statement reversed the outcome of the election, the
defendant shall be deprived of the nomination or election and the
nomination or office shall be declared vacant.
(9) An action under this section must be filed not later than
the 30th day after the election relating to which a publication
or advertisement in violation of this section was made.
Proceedings on a complaint filed under this section shall have
precedence over all other business on the docket. The courts
shall proceed in a manner which will ensure that:
(a) Final judgment on a complaint which relates to a primary
election or nominating election is rendered before the 30th day
before the general election; and
(b) Final judgment on a complaint which relates to an election
to an office is rendered before the term of that office begins.
(10) The remedy provided by this section is the exclusive
remedy for a violation of this section.
SECTION 11. ORS 742.544 is amended to read:
742.544. (1) A provider of personal injury protection benefits
shall be reimbursed for personal injury protection payments made
on behalf of any person only to the extent that the total amount
of benefits paid exceeds the economic damages as defined in ORS
{ - 31.710 - } { + 31.705 + } suffered by that person. As used
in this section, 'total amount of benefits' means the amount of
money recovered by a person from:
(a) Applicable underinsured motorist benefits described in ORS
742.502 (2);
(b) Liability insurance coverage available to the person
receiving the personal injury protection benefits from other
parties to the accident;
(c) Personal injury protection payments; and
(d) Any other payments by or on behalf of the party whose fault
caused the damages.
(2) Nothing in this section requires a person to repay more
than the amount of personal injury protection benefits actually
received.
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