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For personal injury victims in Oregon, understanding fault is crucial to arguing for fair compensation. Oregon is an at fault state, meaning the person who caused an accident can be held legally responsible for the damage done and expenses incurred. However, fault is not always a black-and-white issue. Fortunately, the Oregon Revised Statutes, the state’s codified law, account for this with a specific statute on comparative negligence: ORS 31.600.
In some accidents, one person may have acted with clear recklessness or harmful intent, but in others, the cause may not immediately be clear. This is one of the reasons why negligence is so important. One of the primary types of tort law, negligence is when one person owes a duty of care to the people around them—that is, the law expects them to do what they reasonably can to prevent others from coming to harm —and they fail to uphold that duty.
Let’s look at an example of a car accident involving two drivers who we’ll call Tracy and Tom. Tracy was following Tom very closely in a one-lane road, when Tom realized he was about to miss a turn and quickly applied the brakes. Tracy did not have enough time or space to slow down, resulting in a collision.
In this example, Tom’s sudden braking was an action which could have been avoided by turning around at the next available opportunity or by keeping a closer eye out for his turn in the first place, so he might be found negligent. However, Tracy also failed to keep a safe distance between her vehicle and Tom’s which also caused unnecessary risk, so she might be found negligent.
If both parties are partially negligent, then, can either of them recover compensation? And if so, whose insurance pays for the damages? This is the kind of situation that Oregon’s comparative negligence law, ORS 31.600, exists to address.
Simply put, ORS 31.600 says that “contributory negligence” does not automatically prevent victims from recovering compensation, but that their compensation can be reduced. In full, this statute operates as the primary pillar of Oregon’s comparative negligence system.
The principle behind this statute is simple enough, but there are several conditions, exceptions, and further specifications found in the full statute, which can easily become confusing. Let’s dig in further to actually understand how this negligence law affects personal injury cases.
In short, subsection 1 of ORS 31.600 establishes what’s known as a modified comparative negligence system. This means that if the victim is partially at fault, they may still be eligible to receive compensation. However, there are two notable conditions included in subsection 1 which are crucial to understand:
Firstly, in order to recover compensation from a personal injury case, your percentage of fault must be no greater than the combined fault of all other liable parties. In other words, you must hold 50% or less of the fault to recover compensation.
We refer to Oregon’s negligence law as 51% modified comparative negligence to differentiate it from certain other comparative negligence states where even holding 50% fault is enough to bar you from recovery.
The other key condition limiting recovery under ORS 31.600 is that your overall compensation amount can be reduced based on your percentage of fault.
Let’s look at an example: say you are seeking compensation for $100,000 in medical expenses and emotional suffering , but you are found to hold 35% of the fault. In this case, you would still be eligible for compensation, since your fault is less than 51%. However, your compensation would likely be reduced by 35%, leaving you with only 65% of the amount you sought: $65,000.
Subsection 2 of ORS 31.600 sets about defining who can be considered when calculating the overall percentages of fault in a personal injury accident. The following individuals are eligible for consideration:
Subsection 2 of Oregon’s negligence law also specifies individuals who are exempt from being considered for percentage of fault:
Let’s return to our earlier example of an accident involving Tracy and Tom. Let’s say that Tracy files a claim against Tom for compensation. By her estimation, Tom is 40% at fault for sudden braking, and she is 40% at fault for following too close. However, Tracy also believes that a manufacturing defect caused her brakes to be ineffective, and believes the vehicle manufacturer should be found 20% at fault.
If Tracy is correct about her estimation of fault, then she holds less than 51% of the fault and can therefore recover compensation equal to 60% of the damages she sustained. However, it turns out Tracy purchased her vehicle over 10 years ago, which falls outside of Oregon’s statute of repose for product liability. The manufacturer argues that it cannot be considered at-fault.
If the manufacturer successfully exempts itself from fault in this way, it is possible that the greater portion of the remaining 20% of fault will lie with Tracy instead. This would leave her 60% at fault, and therefore unable to recover any compensation under Oregon’s comparative negligence system.
The remaining subsections of this statute provide clarification on the process of establishing fault.
So how do you actually determine fault and percentage in an accident? There are multiple pieces of evidence that play a key role, such as witness statements, police reports, dash cam footage, medical records, and photographs from the scene. All of these can help establish what really happened and who was responsible.
Looking for more specific answers about how Oregon’s modified comparative negligence system applies to your unique case? Injured in an accident and trying to determine how much compensation you can receive? Call 24/7 for a free consultation with Senft Legal. With multilingual support, a no-win, no-fee pay structure, and three decades of experience in personal injury cases, we aim to provide a legal ally you can count on.