USA Statutes : oregon
Title : TITLE 03 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
Chapter : Chapter 31 Tort Actions

(1) A defendant may make a special motion to strike against a claim in a
civil action described in subsection (2) of this section. The court shall
grant the motion unless the plaintiff establishes in the manner provided
by subsection (3) of this section that there is a probability that the
plaintiff will prevail on the claim. The special motion to strike shall
be treated as a motion to dismiss under ORCP 21 A but shall not be
subject to ORCP 21 F. Upon granting the special motion to strike, the
court shall enter a judgment of dismissal without prejudice.

(2) A special motion to strike may be made under this section
against any claim in a civil action that arises out of:

(a) Any oral statement made, or written statement or other document
submitted, in a legislative, executive or judicial proceeding or other
proceeding authorized by law;

(b) Any oral statement made, or written statement or other document
submitted, in connection with an issue under consideration or review by a
legislative, executive or judicial body or other proceeding authorized by
law;

(c) Any oral statement made, or written statement or other document
presented, in a place open to the public or a public forum in connection
with an issue of public interest; or

(d) Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.

(3) A defendant making a special motion to strike under the
provisions of this section has the initial burden of making a prima facie
showing that the claim against which the motion is made arises out of a
statement, document or conduct described in subsection (2) of this
section. If the defendant meets this burden, the burden shifts to the
plaintiff in the action to establish that there is a probability that the
plaintiff will prevail on the claim by presenting substantial evidence to
support a prima facie case. If the plaintiff meets this burden, the court
shall deny the motion.

(4) In making a determination under subsection (1) of this section,
the court shall consider pleadings and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.

(5) If the court determines that the plaintiff has established a
probability that the plaintiff will prevail on the claim:

(a) The fact that the determination has been made and the substance
of the determination may not be admitted in evidence at any later stage
of the case; and

(b) The determination does not affect the burden of proof or
standard of proof that is applied in the proceeding. [Formerly 30.142](1) A special motion to strike under ORS 31.150 must be
filed within 60 days after the service of the complaint or, in the
court's discretion, at any later time. A hearing shall be held on the
motion not more than 30 days after the filing of the motion unless the
docket conditions of the court require a later hearing.

(2) All discovery in the proceeding shall be stayed upon the filing
of a special motion to strike under ORS 31.150. The stay of discovery
shall remain in effect until entry of the order ruling on the motion. The
court, on motion and for good cause shown, may order that specified
discovery be conducted notwithstanding the stay imposed by this
subsection.

(3) A defendant who prevails on a special motion to strike made
under ORS 31.150 shall be awarded reasonable attorney fees and costs. If
the court finds that a special motion to strike is frivolous or is solely
intended to cause unnecessary delay, the court shall award costs and
reasonable attorney fees to a plaintiff who prevails on a special motion
to strike. [Formerly 30.144](1) ORS 31.150
and 31.152 do not apply to an action brought by the Attorney General, a
district attorney, a county counsel or a city attorney acting in an
official capacity.

(2) ORS 31.150 and 31.152 create a procedure for seeking dismissal
of claims described in ORS 31.150 (2) and do not affect the substantive
law governing those claims. [Formerly 30.146]DEFENSES GENERALLY(1) It is a complete defense in any
civil action for personal injury or wrongful death that:

(a) The person damaged was engaged in conduct at the time that
would constitute aggravated murder, murder or a Class A or a Class B
felony; and

(b) The felonious conduct was a substantial factor contributing to
the injury or death.

(2) To establish the defense described in this section, the
defendant must prove by a preponderance of the evidence the fact that the
person damaged was engaged in conduct that would constitute aggravated
murder, murder or a Class A or a Class B felony.

(3) Nothing in this section affects any right of action under 42
U.S.C. 1983.

(4) The defense established by this section is not available if the
injury or death resulted from a springgun or other device described in
ORS 166.320 and the plaintiff establishes by a preponderance of the
evidence that the use of the springgun or other device constituted a
violation of ORS 166.320.

(5) The defense established by this section is not available if the
injury or death resulted from the use of physical force that was not
justifiable under the standards established by ORS 161.195 to 161.275.
[Formerly 30.698]RULES GOVERNING PARTICULAR CLAIMS FOR RELIEF(Defamation)(1) The owner, licensee or operator of a radio or television
broadcasting station, and the agents or employees of the owner, licensee
or operator, shall not be liable for any damages for any defamatory
statement published or uttered in a radio or television broadcast, by one
other than the owner, licensee or operator, or agent or employee thereof,
unless it is alleged and proved by the complaining party that the owner,
licensee, operator, agent or employee failed to exercise due care to
prevent the publication or utterance of such statement in such broadcast.

(2) In no event shall any owner, licensee or operator of a radio or
television broadcasting station, or any agent or employee thereof, be
liable for any damages for any defamatory statement published or uttered
by one other than such owner, licensee, operator, agent or employee, in
or as part of a radio or television broadcast by any candidate for public
office, which broadcast cannot be censored by reason of federal statute
or regulations of the Federal Communications Commission. [Formerly 30.150]Except as provided in
ORS 31.210, in an action for damages on account of a defamatory statement
published or broadcast in a newspaper, magazine, other printed
periodical, or by radio, television or motion pictures, the plaintiff may
recover any general and special damages which, by competent evidence, the
plaintiff can prove to have suffered as a direct and proximate result of
the publication of the defamatory statement. [Formerly 30.155] (1) In an action for damages
on account of a defamatory statement published or broadcast in a
newspaper, magazine, other printed periodical, or by radio, television or
motion pictures, the plaintiff shall not recover general damages unless:

(a) A correction or retraction is demanded but not published as
provided in ORS 31.215; or

(b) The plaintiff proves by a preponderance of the evidence that
the defendant actually intended to defame the plaintiff.

(2) Where the plaintiff is entitled to recover general damages, the
publication of a correction or retraction may be considered in mitigation
of damages. [Formerly 30.160] (1) The
demand for correction or retraction shall be in writing, signed by the
defamed person or the attorney of the person and be delivered to the
publisher of the defamatory statement, either personally, by registered
mail or by certified mail with return receipt at the publisher's place of
business or residence within 20 days after the defamed person receives
actual knowledge of the defamatory statement. The demand shall specify
which statements are false and defamatory and request that they be
corrected or retracted. The demand may also refer to the sources from
which the true facts may be ascertained with accuracy.

(2) The publisher of the defamatory statement shall have not more
than two weeks after receipt of the demand for correction or retraction
in which to investigate the demand; and, after making such investigation,
the publisher shall publish the correction or retraction in:

(a) The first issue thereafter published, in the case of
newspapers, magazines or other printed periodicals.

(b) The first broadcast or telecast thereafter made, in the case of
radio or television stations.

(c) The first public exhibition thereafter made, in the case of
motion picture theaters.

(3) The correction or retraction shall consist of a statement by
the publisher substantially to the effect that the defamatory statements
previously made are not factually supported and that the publisher
regrets the original publication thereof.

(4) The correction or retraction shall be published in
substantially as conspicuous a manner as the defamatory statement.
[Formerly 30.165]A correction or retraction published prior to notice of demand
therefor shall have the same effect as a correction or retraction after
demand, if the requirements of ORS 31.215 (2), (3) and (4) are
substantially complied with. [Formerly 30.170] Nothing in
ORS 31.205 to 31.220 shall be deemed to affect any defense or privilege
which the publisher may possess by virtue of existing law. [Formerly
30.175](Wrongful Use of Civil Proceeding) (1)
In order to bring a claim for wrongful use of a civil proceeding against
another, a person shall not be required to plead or prove special injury
beyond the expense and other consequences normally associated with
defending against unfounded legal claims.

(2) The filing of a civil action within 60 days of the running of
the statute of limitations for the purpose of preserving and evaluating
the claim when the action is dismissed within 120 days after the date of
filing shall not constitute grounds for a claim for wrongful use of a
civil proceeding under subsection (1) of this section.

(3) A claim for damages for wrongful use of a civil proceeding
shall be brought in an original action after the proceeding which is the
subject matter of the claim is concluded. [Formerly 30.895](Actions Against Health Practitioners and Health Care Facilities)(1) In any action
described in subsection (5) of this section, all parties to the action
and their attorneys must participate in some form of dispute resolution
within 270 days after the action is filed unless:

(a) The action is settled or otherwise resolved within 270 days
after the action is filed; or

(b) All parties to the action agree in writing to waive dispute
resolution under this section.

(2) Dispute resolution under this section may consist of
arbitration, mediation or a judicial settlement conference.

(3) Within 270 days after filing an action described in subsection
(5) of this section, the parties or their attorneys must file a
certificate indicating that the parties and attorneys have complied with
the requirements of this section.

(4) The court may impose appropriate sanctions against any party or
attorney who:

(a) Fails to attend an arbitration hearing, mediation session or
judicial settlement conference conducted for the purposes of the
requirements of this section;

(b) Fails to act in good faith in any arbitration, mediation or
judicial settlement conference conducted for the purposes of the
requirements of this section;

(c) Fails to timely submit any documents required for an
arbitration, mediation or judicial settlement conference conducted for
the purposes of the requirements of this section; or

(d) Fails to have a person with authority to approve a resolution
of the action available at the time of any arbitration hearing, mediation
session or judicial settlement conference conducted for the purposes of
the requirements of this section, unless the party or attorney receives
from the court, before the hearing, session or conference commences, an
exemption from the requirements of this paragraph.

(5) The provisions of this section apply to any action in which a
claim for damages is made against a health practitioner, as described in
ORS 31.740, or against a health care facility, as defined in ORS 442.015,
based on negligence, unauthorized rendering of health care or product
liability under ORS 30.900 to 30.920. [2003 c.598 §54](Actions Against Construction Design Professionals)(1) As used in this section, "construction design
professional" means an architect, registered landscape architect,
professional engineer or professional land surveyor.

(2) A complaint, cross-claim, counterclaim or third-party complaint
asserting a claim against a construction design professional that arises
out of the provision of services within the course and scope of the
activities for which the person is licensed may not be filed unless the
claimant's attorney certifies that the attorney has consulted a licensed
construction design professional who is qualified, available and willing
to testify to admissible facts and opinions sufficient to create a
question of fact as to the liability of the construction design
professional. The certification required by this section must be filed
with or be made part of the original complaint, cross-claim, counterclaim
or third-party complaint. The certification must contain a statement that
a licensed construction design professional who is qualified to testify
as to the standard of care applicable to the alleged facts, is available
and willing to testify that:

(a) The alleged conduct of the construction design professional
failed to meet the standard of professional care applicable to the
construction design professional in the circumstances alleged; and

(b) The alleged conduct was a cause of the claimed damages, losses
or other harm.

(3) In lieu of providing the certification described in subsection
(2) of this section, the claimant's attorney may file with the court at
the time of filing a complaint, cross-claim, counterclaim or third-party
complaint an affidavit that states:

(a) The applicable statute of limitations is about to expire;

(b) The certification required under subsection (2) of this section
will be filed within 30 days after filing the complaint, cross-claim,
counterclaim or third-party complaint or such longer time as the court
may allow for good cause shown; and

(c) The attorney has made such inquiry as is reasonable under the
circumstances and has made a good faith attempt to consult with at least
one licensed construction design professional who is qualified to testify
as to the standard of care applicable to the alleged facts, as required
by subsection (2) of this section.

(4) Upon motion of the construction design professional, the court
shall enter judgment dismissing any complaint, cross-claim, counterclaim
or third-party complaint against any construction design professional
that fails to comply with the requirements of this section.

(5) This section applies only to a complaint, cross-claim,
counterclaim or third-party complaint against a construction design
professional by any plaintiff who:

(a) Is a construction design professional, contractor,
subcontractor or other person providing labor, materials or services for
the real property improvement that is the subject of the claim;

(b) Is the owner, lessor, lessee, renter or occupier of the real
property improvement that is the subject of the claim;

(c) Is involved in the operation or management of the real property
improvement that is the subject of the claim;

(d) Has contracted with or otherwise employed the construction
design professional; or

(e) Is a person for whose benefit the construction design
professional performed services. [2003 c.418 §1](Actions Against Real Estate Licensees)(1) As used in this section, "real estate licensee" has the
meaning given that term in ORS 696.010.

(2) A complaint, cross-claim, counterclaim or third-party complaint
asserting a claim of professional negligence against a real estate
licensee for conduct occurring within the course and scope of the
activities for which the person is licensed may not be filed unless the
claimant's attorney certifies that the attorney has consulted a real
estate licensee who is qualified, available and willing to testify to
admissible facts and opinions sufficient to create a question of fact as
to the liability of the real estate licensee. The certification required
by this section must be filed with or be made part of the original
complaint, cross-claim, counterclaim or third-party complaint. The
certification must contain a statement that a real estate licensee who is
qualified to testify as to the standard of care applicable to the alleged
facts, is available and willing to testify that:

(a) The alleged conduct of the real estate licensee failed to meet
the standard of professional care applicable to the real estate licensee
in the circumstances alleged; and

(b) The alleged conduct was a cause of the claimed damages, losses
or other harm.

(3) In lieu of providing the certification described in subsection
(2) of this section, the claimant's attorney may file with the court at
the time of filing a complaint, cross-claim, counterclaim or third-party
complaint an affidavit that states:

(a) The applicable statute of limitations is about to expire;

(b) The certification required under subsection (2) of this section
will be filed within 30 days after filing the complaint, cross-claim,
counterclaim or third-party complaint or such longer time as the court
may allow for good cause shown; and

(c) The attorney has made such inquiry as is reasonable under the
circumstances and has made a good faith attempt to consult with at least
one real estate licensee who is qualified to testify as to the standard
of care applicable to the alleged facts, as required by subsection (2) of
this section.

(4) Upon motion of the real estate licensee, the court shall enter
judgment dismissing any complaint, cross-claim, counterclaim or
third-party complaint against any real estate licensee who fails to
comply with the requirements of this section.

(5) This section applies only to a complaint, cross-claim,
counterclaim or third-party complaint against a real estate licensee by
any plaintiff who:

(a) Has contracted with or otherwise employed the real estate
licensee; or

(b) Is a person for whose benefit the real estate licensee
performed services. [2005 c.277 §1]Note: Section 2, chapter 277, Oregon Laws 2005, provides:

Sec. 2. Section 1 of this 2005 Act [31.350] applies to complaints,
cross-claims, counterclaims and third-party complaints filed on or after
the effective date of this 2005 Act [January 1, 2006]. [2005 c.277 §2]ADVANCE PAYMENTSAs used in ORS 12.155 and 31.550
to 31.565, "advance payment" means compensation for the injury or death
of a person or the injury or destruction of property prior to the
determination of legal liability therefor. [Formerly 18.500](1) If judgment is entered against a party on whose behalf an
advance payment referred to in ORS 31.560 or 31.565 has been made and in
favor of a party for whose benefit any such advance payment has been
received, the amount of the judgment shall be reduced by the amount of
any such payments in the manner provided in subsection (3) of this
section. However, nothing in ORS 12.155, 31.560 and 31.565 and this
section authorizes the person making such payments to recover such
advance payment if no damages are awarded or to recover any amount by
which the advance payment exceeds the award of damages.

(2) If judgment is entered against a party who is insured under a
policy of liability insurance against such judgment and in favor of a
party who has received benefits that have been the basis for a
reimbursement payment by such insurer under ORS 742.534, the amount of
the judgment shall be reduced by reason of such benefits in the manner
provided in subsection (3) of this section.

(3)(a) The amount of any advance payment referred to in subsection
(1) of this section may be submitted by the party making the payment, in
the manner provided in ORCP 68 C(4) for the submission of disbursements.

(b) The amount of any benefits referred to in subsection (2) of
this section, diminished in proportion to the amount of negligence
attributable to the party in favor of whom the judgment was entered and
diminished to an amount no greater than the reimbursement payment made by
the insurer under ORS 742.534, may be submitted by the insurer which has
made the reimbursement payment, in the manner provided in ORCP 68 C(4)
for the submission of disbursements.

(c) Unless timely objections are filed as provided in ORCP 68 C(4),
the court clerk shall apply the amounts claimed pursuant to this
subsection in partial satisfaction of the judgment. Such partial
satisfaction shall be allowed without regard to whether the party
claiming the reduction is otherwise entitled to costs and disbursements
in the action. [Formerly 18.510](1) Advance payment made for
damages arising from the death or injury of a person is not an admission
of liability for the death or injury by the person making the payment
unless the parties to the payment agree to the contrary in writing.

(2) For the purpose of subsection (1) of this section, advance
payment is made when payment is made with or to:

(a) The injured person;

(b) A person acting on behalf of the injured person with the
consent of the injured person; or

(c) Any other person entitled to recover damages on account of the
injury or death of the injured or deceased person. [Formerly 18.520]Any advance payment made for damages arising from injury or
destruction of property is not an admission of liability for the injury
or destruction by the person making the payment unless the parties to the
payment agree to the contrary in writing. [Formerly 18.530]COLLATERAL BENEFITS (1) In a civil action, when a
party is awarded damages for bodily injury or death of a person which are
to be paid by another party to the action, and the party awarded damages
or person injured or deceased received benefits for the injury or death
other than from the party who is to pay the damages, the court may deduct
from the amount of damages awarded, before the entry of a judgment, the
total amount of those collateral benefits other than:

(a) Benefits which the party awarded damages, the person injured or
that person's estate is obligated to repay;

(b) Life insurance or other death benefits;

(c) Insurance benefits for which the person injured or deceased or
members of that person's family paid premiums; and

(d) Retirement, disability and pension plan benefits, and federal
Social Security benefits.

(2) Evidence of the benefit described in subsection (1) of this
section and the cost of obtaining it is not admissible at trial, but
shall be received by the court by affidavit submitted after the verdict
by any party to the action. [Formerly 18.580]COMPARATIVE NEGLIGENCE(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.
[Formerly 18.470](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 ORS 31.600 (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 31.600.

(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
ORS 31.600 (2). [Formerly 18.480](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
31.605 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 31.605.
The court shall calculate and state in the judgment a monetary amount
reflecting the share of the obligation of each person specified in ORS
31.600 (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 31.605.

(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 31.605. 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 31.605,
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 31.605; or

(b) The percentage of fault of the party is 25 percent or less as
determined by the trier of fact under ORS 31.605.

(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. [Formerly 18.485] Setoff of damages shall not
be granted in actions subject to ORS 31.600 to 31.620. [Formerly 18.490](1) The doctrine of last clear chance is abolished.

(2) The doctrine of implied assumption of the risk is abolished.
[Formerly 18.475]DAMAGES(Economic Damages)(1) When the guardian ad litem of a child maintains a cause
of action for recovery of damages to the child caused by a wrongful act,
the parent, parents, or conservator of the estate of the child may file a
consent accompanying the complaint of the guardian ad litem to include in
the cause of action the damages as, in all the circumstances of the case,
may be just, and will reasonably and fairly compensate for the doctor,
hospital and medical expenses caused by the injury.

(2) If the consent is filed as provided in subsection (1) of this
section and the court allows the filing, no court shall entertain a cause
of action by the parent, parents or conservator for doctor, hospital or
medical expenses caused by the injury. [Formerly 30.810](Verdict Form)A verdict shall set forth separately economic damages and
noneconomic damages, if any, as defined in ORS 31.710. [Formerly 18.570](Noneconomic Damages)(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 not exceed $500,000.

(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) This section does not apply to punitive damages.

(4) The jury shall not be advised of the limitation set forth in
this section. [Formerly 18.560](1) Except as provided in this section, a
plaintiff may not recover noneconomic damages, as defined in ORS 31.710,
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. [Formerly 18.592](Punitive Damages)(1) A pleading in a civil
action may not contain a request for an award of punitive damages except
as provided in this section.

(2) At the time of filing a pleading with the court, the pleading
may not contain a request for an award of punitive damages. At any time
after the pleading is filed, a party may move the court to allow the
party to amend the pleading to assert a claim for punitive damages. The
party making the motion may submit affidavits and documentation
supporting the claim for punitive damages. The party or parties opposing
the motion may submit opposing affidavits and documentation.

(3) The court shall deny a motion to amend a pleading made under
the provisions of this section if:

(a) The court determines that the affidavits and supporting
documentation submitted by the party seeking punitive damages fail to set
forth specific facts supported by admissible evidence adequate to avoid
the granting of a motion for a directed verdict to the party opposing the
motion on the issue of punitive damages in a trial of the matter; or

(b) The party opposing the motion establishes that the timing of
the motion to amend prejudices the party's ability to defend against the
claim for punitive damages.

(4) The court may grant a continuance on a motion under this
section to allow a party opposing the motion to conduct such discovery as
is necessary to establish one of the grounds for denial of the motion
specified in subsection (3) of this section. If the court grants the
motion, the court may continue the action to allow such discovery as the
defendant may require to defend against the claim for punitive damages.

(5) Subject to subsection (4) of this section, the court shall
conduct a hearing on a motion filed under this section not more than 30
days after the motion is filed and served. The court shall issue a
decision within 10 days after the hearing. If no decision is issued
within 10 days, the motion shall be considered denied.

(6) Discovery of evidence of a defendant's ability to pay shall not
be allowed by a court unless and until the court grants a motion to amend
a pleading under this section. [Formerly 18.535](1)
Punitive damages are not recoverable in a civil action unless it is
proven by clear and convincing evidence that the party against whom
punitive damages are sought has acted with malice or has shown a reckless
and outrageous indifference to a highly unreasonable risk of harm and has
acted with a conscious indifference to the health, safety and welfare of
others.

(2) If an award of punitive damages is made by a jury, the court
shall review the award to determine whether the award is within the range
of damages that a rational juror would be entitled to award based on the
record as a whole, viewing the statutory and common-law factors that
allow an award of punitive damages for the specific type of claim at
issue in the proceeding.

(3) In addition to any reduction that may be made under subsection
(2) of this section, upon the motion of a defendant the court may reduce
the amount of any judgment requiring the payment of punitive damages
entered against the defendant if the defendant establishes that the
defendant has taken remedial measures that are reasonable under the
circumstances to prevent reoccurrence of the conduct that gave rise to
the claim for punitive damages. In reducing awards of punitive damages
under the provisions of this subsection, the court shall consider the
amount of any previous judgment for punitive damages entered against the
same defendant for the same conduct giving rise to a claim for punitive
damages. [Formerly 18.537](1) Upon the entry of a verdict including
an award of punitive damages, the Department of Justice shall become a
judgment creditor as to the punitive damages portion of the award to
which the Criminal Injuries Compensation Account is entitled pursuant to
paragraph (b) of this subsection, and the punitive damage portion of an
award shall be allocated as follows:

(a) Forty percent shall be paid to the prevailing party. The
attorney for the prevailing party shall be paid out of the amount
allocated under this paragraph, in the amount agreed upon between the
attorney and the prevailing party. However, in no event may more than 20
percent of the amount awarded as punitive damages be paid to the attorney
for the prevailing party.

(b) Sixty percent shall be paid to the Criminal Injuries
Compensation Account of the Department of Justice Crime Victims'
Assistance Section to be used for the purposes set forth in ORS chapter
147. However, if the prevailing party is a public entity, the amount
otherwise payable to the Criminal Injuries Compensation Account shall be
paid to the general fund of the public entity.

(2) The party preparing the proposed judgment shall assure that the
judgment identifies the judgment creditors specified in subsection (1) of
this section.

(3) Upon the entry of a verdict including an award of punitive
damages, the prevailing party shall provide notice of the verdict to the
Department of Justice. In addition, upon entry of a judgment based on a
verdict that includes an award of punitive damages, the prevailing party
shall provide notice of the judgment to the Department of Justice. The
notices required under this subsection must be in writing and must be
delivered to the Department of Justice Crime Victims' Assistance Section
in Salem, Oregon within five days after the entry of the verdict or
judgment.

(4) Whenever a judgment includes both compensatory and punitive
damages, any payment on the judgment by or on behalf of any defendant,
whether voluntary or by execution or otherwise, shall be applied first to
compensatory damages, costs and court-awarded attorney fees awarded
against that defendant and then to punitive damages awarded against that
defendant unless all affected parties, including the Department of
Justice, expressly agree otherwise, or unless that application is
contrary to the express terms of the judgment.

(5) Whenever any judgment creditor of a judgment which includes
punitive damages governed by this section receives any payment on the
judgment by or on behalf of any defendant, the judgment creditor
receiving the payment shall notify the attorney for the other judgment
creditors and all sums collected shall be applied as required by
subsections (1) and (4) of this section, unless all affected parties,
including the Department of Justice, expressly agree otherwise, or unless
that application is contrary to the express terms of the judgment.
[Formerly 18.540]Punitive damages shall not be awarded against a health
practitioner if:

(1) The health practitioner is licensed, registered or certified as:

(a) A psychologist under ORS 675.030 to 675.070, 675.085 and
675.090;

(b) An occupational therapist under ORS 675.230 to 675.300;

(c) A licensed clinical social worker under ORS 675.530, 675.540 to
675.560, 675.580 and 675.585;

(d) A physician under ORS 677.100 to 677.228;

(e) An emergency medical technician under ORS chapter 682;

(f) A podiatric physician and surgeon under ORS 677.820 to 677.840;

(g) A nurse under ORS 678.040 to 678.101;

(h) A nurse practitioner under ORS 678.375 to 678.390;

(i) A dentist under ORS 679.060 to 679.180;

(j) A dental hygienist under ORS 680.040 to 680.100;

(k) A denturist under ORS 680.515 to 680.535;

(L) An audiologist or speech-language pathologist under ORS 681.250
to 681.350;

(m) An optometrist under ORS 683.040 to 683.155 and 683.170 to
683.220;

(n) A chiropractor under ORS 684.040 to 684.105;

(o) A naturopath under ORS 685.060 to 685.110, 685.125 and 685.135;

(p) A massage therapist under ORS 687.021 to 687.086;

(q) A physical therapist under ORS 688.040 to 688.145;

(r) A radiologic technician under ORS 688.445 to 688.525;

(s) A pharmacist under ORS 689.151 and 689.225 to 689.285; or

(t) A physician assistant as provided by ORS 677.505 to 677.525; and

(2) The health practitioner was engaged in conduct regulated by the
license, registration or certificate issued by the appropriate governing
body and was acting within the scope of practice for which the license,
registration or certificate was issued and without malice. [Formerly
18.550; 2005 c.366 §4](Mitigation of Damages)(1) In an action brought to recover damages for personal
injuries arising out of a motor vehicle accident, evidence of the nonuse
of a safety belt or harness may be admitted only to mitigate the injured
party's damages. The mitigation shall not exceed five percent of the
amount to which the injured party would otherwise be entitled.

(2) Subsection (1) of this section shall not apply to:

(a) Actions brought under ORS 30.900 to 30.920; or

(b) Actions to recover damages for personal injuries arising out of
a motor vehicle accident when nonuse of a safety belt or harness is a
substantial contributing cause of the accident itself. [Formerly 18.590]CONTRIBUTION(1) Except as
otherwise provided in this section, where two or more persons become
jointly or severally liable in tort for the same injury to person or
property or for the same wrongful death, there is a right of contribution
among them even though judgment has not been recovered against all or any
of them. There is no right of contribution from a person who is not
liable in tort to the claimant.

(2) The right of contribution exists only in favor of a tortfeasor
who has paid more than a proportional share of the common liability, and
the total recovery of the tortfeasor is limited to the amount paid by the
tortfeasor in excess of the proportional share. No tortfeasor is
compelled to make contribution beyond the proportional share of the
tortfeasor of the entire liability.

(3) A tortfeasor who enters into a settlement with a claimant is
not entitled to recover contribution from another tortfeasor whose
liability for the injury or wrongful death is not extinguished by the
settlement nor in respect to any amount paid in a settlement which is in
excess of what is reasonable.

(4) A liability insurer, who by payment has discharged in full or
in part the liability of a tortfeasor and has thereby discharged in full
its obligation as insurer, is subrogated to the tortfeasor's right of
contribution to the extent of the amount it has paid in excess of the
tortfeasor's proportional share of the common liability. This subsection
does not limit or impair any right of subrogation arising from any other
relationship.

(5) This section does not impair any right of indemnity under
existing law. Where one tortfeasor is entitled to indemnity from another,
the right of the indemnity obligee is for indemnity and not contribution,
and the indemnity obligor is not entitled to contribution from the
obligee for any portion of the indemnity obligation.

(6) This section shall not apply to breaches of trust or of other
fiduciary obligation. [Formerly 18.440] (1) The
proportional shares of tortfeasors in the entire liability shall be based
upon their relative degrees of fault or responsibility. In contribution
actions arising out of liability under ORS 31.600, the proportional share
of a tortfeasor in the entire liability shall be based upon the
tortfeasor's percentage of the common negligence of all tortfeasors.

(2) If equity requires, the collective liability of some as a group
shall constitute a single share. Principles of equity applicable to
contribution generally shall apply. [Formerly 18.445](1) Whether or not judgment has been entered in an action
against two or more tortfeasors for the same injury or wrongful death,
contribution may be enforced by separate action.

(2) Where a judgment has been entered in an action against two or
more tortfeasors for the same injury or wrongful death, contribution may
be enforced in that action by judgment in favor of one against other
judgment defendants by motion upon notice to all parties to the action.

(3) If there is a judgment for the injury or wrongful death against
the tortfeasor seeking contribution, any separate action by the
tortfeasor to enforce contribution must be commenced within two years
after the judgment has become final by lapse of time for appeal or after
appellate review.

(4) If there is no judgment for the injury or wrongful death
against the tortfeasor seeking contribution, the right of contribution of
that tortfeasor is barred unless the tortfeasor has either:

(a) Discharged by payment the common liability within the statute
of limitations period applicable to claimant's right of action against
the tortfeasor and has commenced action for contribution within two years
after payment; or

(b) Agreed while action is pending against the tortfeasor to
discharge the common liability and has within two years after the
agreement paid the liability and commenced action for contribution.

(5) The running of the statute of limitations applicable to a
claimant's right of recovery against a tortfeasor shall not operate to
bar recovery of contribution against the tortfeasor or the claimant's
right of recovery against a tortfeasor specified in ORS 31.600 (2) who
has been made a party by another tortfeasor.

(6) The recovery of a judgment for an injury or wrongful death
against one tortfeasor does not of itself discharge the other tortfeasors
from liability for the injury or wrongful death unless the judgment is
satisfied. The satisfaction of the judgment does not impair any right of
contribution.

(7) The judgment of the court in determining the liability of the
several defendants to the claimant for an injury or wrongful death shall
be binding as among such defendants in determining their right to
contribution. [Formerly 18.450] (1) When a covenant not
to sue or not to enforce judgment is given in good faith to one of two or
more persons liable in tort for the same injury to person or property or
the same wrongful death or claimed to be liable in tort for the same
injury or the same wrongful death:

(a) It does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms so provide;
but the claimant's claim against all other persons specified in ORS
31.600 (2) for the injury or wrongful death is reduced by the share of
the obligation of the tortfeasor who is given the covenant, as determined
under ORS 31.605 and 31.610; and

(b) It discharges the tortfeasor to whom it is given from all
liability for contribution to any other tortfeasor.

(2) When a covenant described in subsection (1) of this section is
given, the claimant shall give notice of all of the terms of the covenant
to all persons against whom the claimant makes claims. [Formerly 18.455]If any provision of ORS 31.800 to 31.820 or
the application thereof to any person is held invalid, the invalidity
shall not affect other provisions or applications of ORS 31.800 to 31.820
which can be given effect without the invalid provision or application
and to this end the provisions of ORS 31.800 to 31.820 are severable.
[Formerly 18.460]ASSIGNMENT OF CAUSE OF ACTION AGAINST INSURER A defendant
in a tort action against whom a judgment has been rendered may assign any
cause of action that defendant has against the defendant's insurer as a
result of the judgment to the plaintiff in whose favor the judgment has
been entered. That assignment and any release or covenant given for the
assignment shall not extinguish the cause of action against the insurer
unless the assignment specifically so provides. [Formerly 17.100]ABOLISHED COMMON LAW ACTIONS There shall
be no civil cause of action for alienation of affections. [Formerly
30.840]

     

There shall be
no civil cause of action for criminal conversation. [Formerly 30.850]

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