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 2059
 
                         House Bill 2480
 
Sponsored by 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.
 
  Clarifies that doctrine of contributory negligence is
abolished.
 
                        A BILL FOR AN ACT
Relating to contributory negligence; amending ORS 31.600 and
  608.360 and ORCP 19 B.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 31.600 is amended to read:
  31.600. (1)  { + The defense of contributory negligence is
abolished and may not be asserted in any civil action. + }
  { - Contributory - }  { +  A plaintiff's + } negligence
 { - shall - }  { +  does + } not bar recovery in an action by
 { - any person - }  { +  the plaintiff + } or the legal
representative of the   { - person - }  { +  plaintiff + } to
recover damages for death or injury to person or property { + ,
or for economic loss, + } 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.
  SECTION 2. ORCP 19 B is amended to read:
  B Affirmative defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, comparative   { - or
contributory - }  negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by
fellow servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, unconstitutionality,
waiver, and any other matter constituting an avoidance or
affirmative defense. When a party has mistakenly designated a
defense as a counterclaim or a counterclaim as a defense, the
court on terms, if justice so requires, shall treat the pleading
as if there had been a proper designation.
  SECTION 3. ORS 608.360 is amended to read:
  608.360. In every action for the recovery of the value of any
livestock killed, or for damages for injury to any livestock,
under ORS 608.340, proof of such killing or injury shall of
itself be deemed conclusive evidence in any court of this state
of negligence upon the part of the person, or the lessees or
agents of the person, owning or operating such railroad.
 { - Contributory - }  { +  Comparative + } negligence on the
part of the plaintiff in such action may be set up as a defense,
but allowing stock to run at large upon common unfenced range or
upon enclosed land owned or in possession of the owner of such
stock shall not be deemed
  { - contributory - }  { +  comparative + } negligence. In any
such action, proof of willful intent on the part of the plaintiff
to procure the killing or injury of such stock shall defeat the
recovery of any damages for such killing or injury.
                         ----------