negligence per se claim in Oregon

2024Third, 12 Context suggests that, by “apparent legislative policy,” the court was referring to ORS 471.430 (1979) (making purchase and consumption of alcohol by minors illegal) and the notion that it would be “inconsistent with apparent legislative policy to reward the violator with a cause of action based upon [the] conduct which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279 (applying similar reasoning to reject the plaintiff’s negligence per se claim). and finally, we note that the court in Miller predicated its refusal to ‘create * * * a common law cause of acti

2024Third, 12 Context suggests that, by “apparent legislative policy,” the court was referring to ORS 471.430 (1979) (making purchase and consumption of alcohol by minors illegal) and the notion that it would be “inconsistent with apparent legislative policy to reward the violator with a cause of action based upon [the] conduct which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279 (applying similar reasoning to reject the plaintiff’s negligence per se claim). and finally, we note that the court in Miller predicated its refusal to ‘create * * * a common law cause of acti

2024Third, 12 Context suggests that, by “apparent legislative policy,” the court was referring to ORS 471.430 (1979) (making purchase and consumption of alcohol by minors illegal) and the notion that it would be “inconsistent with apparent legislative policy to reward the violator with a cause of action based upon [the] conduct which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279 (applying similar reasoning to reject the plaintiff’s negligence per se claim). and finally, we note that the court in Miller predicated its refusal to ‘create * * * a common law cause of acti

2024Third, 12 Context suggests that, by “apparent legislative policy,” the court was referring to ORS 471.430 (1979) (making purchase and consumption of alcohol by minors illegal) and the notion that it would be “inconsistent with apparent legislative policy to reward the violator with a cause of action based upon [the] conduct which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279 (applying similar reasoning to reject the plaintiff’s negligence per se claim). and finally, we note that the court in Miller predicated its refusal to ‘create * * * a common law cause of acti

2016We have no occasion in this case to revisit that aspect of the holding in Stachniewicz. 10 The court adopted the “visibly intoxicated” standard as a common-law negligence standard, although, in the context of a negligence per se claim, this court previously had held in Stachniewicz that the visibly intoxicated standard was “particularly inappropriate for the awarding of civil damages because of the extreme difficulty, if not impossibility, of determining whether a third party’s injuries would have been caused, in any event, by the already inebriated person.” Stachniewicz, 259 Or at 586-87 . 11

2016This court in Campbell held that there was suf- ficient evidence to support an inference that, in serving alcohol to the patron while she was visibly intoxicated, the tavern owners had reason to know that, upon leaving the 10 The court adopted the “visibly intoxicated” standard as a common-law negligence standard, although, in the context of a negligence per se claim, this court previously had held in Stachniewicz that the visibly intoxicated standard was “particularly inappropriate for the awarding of civil damages because of the extreme difficulty, if not impossibility, of determining whethe

2014A right of action that a court provides under comment d is not “read into” a statute; rather, such a right is provided “because the court, not the legislature, believes it is necessary and desirable to further vindicate the right or to further enforce the duty created by the statute.” Burnette, 284 Or at 712 . 14 So understood, such a right of action is conceptually analogous to a negligence per se claim to the extent that both are judicially created based on common-law principles but depend on the existence of statutory duties.

2014A right of action that a court provides under comment d is not “read into” a statute; rather, such a right is provided “because the court, not the legislature, believes it is necessary and desirable to further vindicate the right or to further enforce the duty created by the statute.” Burnette, 284 Or at 712 .14 So understood, such a right of action is conceptually analogous to a negligence per se claim to the extent that both are judicially created based on common-law principles but depend on the existence of statutory duties.

2023Defendant contests that conclusion, maintaining that a negligence per se claim can be proved in that way only when, as this court stated in Deckard v. Bunch, 358 Or 754 , 761 n 6, 370 P3d 478 (2016), “a negligence claim otherwise exists” (emphasis added).5 And in this case, defendant argues, a negligence claim for violation of an insurance statute does not “otherwise exist.” Defendant is correct that a negligence per se claim is not a separate type of negligence claim with its own elements; rather, negligence per se is “simply shorthand for a negligence claim in which the standard of care is e

2023Defendant contests that conclusion, maintaining that a negligence per se claim can be proved in that way only when, as this court stated in Deckard v. Bunch, 358 Or 754 , 761 n 6, 370 P3d 478 (2016), “a negligence claim otherwise exists” (emphasis added).5 And in this case, defendant argues, a negligence claim for violation of an insurance statute does not “otherwise exist.” Defendant is correct that a negligence per se claim is not a separate type of negligence claim with its own elements; rather, negligence per se is “simply shorthand for a negligence claim in which the standard of care is e

2001Justice O’Connell lucidly explained what he believed were the logical and practical fallacies of the negligence per se doctrine in his dissent in McConnell v. Herron, 240 Or 486, 494-503 , 402 P2d 726 (1965).

2001Justice O’Connell lucidly explained what he believed were the logical and practical fallacies of the negligence per se doctrine in his dissent in McConnell v. Herron, 240 Or 486, 494-503 , 402 P2d 726 (1965).

1987As the court pointed out in Chartrand v. Coos Bay Tavern, supra, 298 Or. at 695 , 696 P.2d 513 , negligence can be proved against a tavern owner "as a matter of law by violation of Oregon Liquor Control Act, Chapter 471, as recognized in Davis v. Billy's Con-Teena * * *." Furthermore, the doctrine of negligence per se only applies to cases brought on "a theory of liability for negligence rather than liability grounded in obligations created by statute." Shahtout v. Emco Garbage Co., 298 Or. 598, 601 , 695 P.2d 897 (1985).

1987As the court pointed out in Chartrand v. Coos Bay Tavern, supra, 298 Or. at 695 , 696 P.2d 513 , negligence can be proved against a tavern owner "as a matter of law by violation of Oregon Liquor Control Act, Chapter 471, as recognized in Davis v. Billy's Con-Teena * * *." Furthermore, the doctrine of negligence per se only applies to cases brought on "a theory of liability for negligence rather than liability grounded in obligations created by statute." Shahtout v. Emco Garbage Co., 298 Or. 598, 601 , 695 P.2d 897 (1985).

2000Hawkins v. Conklin, 87 Or App 392, 395 , 742 P2d 672 (1987).

2000Hawkins v. Conklin, 87 Or App 392, 395 , 742 P2d 672 (1987).

1987Resser v. Boise Cascade Corporation, 284 Or. 385 , 587 P.2d 80 (1978); Torres v. Pacific Power and Light, 84 Or.

1987Resser v. Boise Cascade Corporation, 284 Or. 385 , 587 P.2d 80 (1978); Torres v. Pacific Power and Light, 84 Or.

2026In Paul I, we concluded that although HIPAA and other state laws “establish standards of conduct, any violation of those standards does not give rise to a negligence per se claim for economic damages in the absence of a special relationship that protects against that type of injury.” 237 Or App at 593 .6 Plaintiff has not demonstrated that CIPA or section 5 of the FTCA operate on this case in a different manner or change the analysis in Paul I.

2023Co., 284 Or 453 , 587 P2d 1015 (1978) (Farris II), forecloses any negligence per se claim based on a violation of ORS 746.230(1), 317 Or App at 243-46 ; (2) rejected defendant’s contention that, for a negligence per se claim to stand, a plaintiff also must have a common-law negligence claim, id. at 241-43 ; and (3) rejected defendant’s contention that the emotional injury that plaintiff had alleged that she had suffered was not of a type that ORS 746.230(1) was enacted to prevent, id. at 246-47 .

2023Co., 284 Or 453 , 587 P2d 1015 (1978) (Farris II), forecloses any negligence per se claim based on a violation of ORS 746.230(1), 317 Or App at 243-46 ; (2) rejected defendant’s contention that, for a negligence per se claim to stand, a plaintiff also must have a common-law negligence claim, id. at 241-43 ; and (3) rejected defendant’s contention that the emotional injury that plaintiff had alleged that she had suffered was not of a type that ORS 746.230(1) was enacted to prevent, id. at 246-47 .

2023Defendant contests that conclusion, maintaining that a negligence per se claim can be proved in that way only when, as this court stated in Deckard v. Bunch, 358 Or 754 , 761 n 6, 370 P3d 478 (2016), “a negligence claim otherwise exists” (emphasis added).5 And in this case, defendant argues, a negligence claim for violation of an insurance statute does not “otherwise exist.” Defendant is correct that a negligence per se claim is not a separate type of negligence claim with its own elements; rather, negligence per se is “simply shorthand for a negligence claim in which the standard of care is e

2022Hernandez v. Catholic Health Initiatives, 311 Or App 70, 72 , 490 P3d 166 (2021).

2022Hernandez v. Catholic Health Initiatives, 311 Or App 70, 72 , 490 P3d 166 (2021).

2022According to defendant, Abraham I “is not precedential since the Supreme Court used a different rationale to decide the case.” As noted above, in Abraham I, we concluded that the Oregon Building Code created a standard of care independent of the contract between the plaintiffs and the contractors they hired to build their home for the purposes of the plaintiffs’ negligence per se claim. 230 Or App at 573-74 .

2016Id. at 418-19 (citing Stachniewicz, 259 Or at 586-87 ; Hawkins, 307 Or at 265 ).

2009To establish a negligence per se claim, plaintiff must prove that “(1) defendants violated a statute [or rule]; (2) that plaintiff was injured as a result of that violation; (3) that plaintiff was a member of the class of persons meant to be protected by the statute [or rule]; and (4) that the injury plaintiff suffered is of a type that the statute [or rule] was enacted to prevent.” McAlpine v. Multnomah County, 131 Or App 136, 144 , 883 P2d 869 (1994), rev den, 320 Or 507 (1995) (citations omitted).

2009To establish a negligence per se claim, plaintiff must prove that “(1) defendants violated a statute [or rule]; (2) that plaintiff was injured as a result of that violation; (3) that plaintiff was a member of the class of persons meant to be protected by the statute [or rule]; and (4) that the injury plaintiff suffered is of a type that the statute [or rule] was enacted to prevent.” McAlpine v. Multnomah County, 131 Or App 136, 144 , 883 P2d 869 (1994), rev den, 320 Or 507 (1995) (citations omitted).

2000For example, Lange v. Minton, 303 Or 484 , 738 P2d 576 (1987), involved a negligence per se claim where plaintiff relied on a standard of care established by a city ordinance.

2000For example, Lange v. Minton, 303 Or 484 , 738 P2d 576 (1987), involved a negligence per se claim where plaintiff relied on a standard of care established by a city ordinance.

2000Flores did not involve a negligence per se claim. 6 Plaintiff asserts, particularly, that defendant’s alleged “direct responsibility for the enforcement of these workplace safety violations” distinguishes this case from Hagen v. Gemstate Manufacturing, Inc., 328 Or 535, 542 , 982 P2d 1108 (1999), where the pertinent regulation did not directly regulate the defendant, and thus, could not support a claim of negligence but was “admissible to provide some information about whether the defendant met the applicable standard of care.” 7 See 169 Or App at 475-76 nn 1-3. 8 Those CSA standards were orig

2000Flores did not involve a negligence per se claim. 6 Plaintiff asserts, particularly, that defendant’s alleged “direct responsibility for the enforcement of these workplace safety violations” distinguishes this case from Hagen v. Gemstate Manufacturing, Inc., 328 Or 535, 542 , 982 P2d 1108 (1999), where the pertinent regulation did not directly regulate the defendant, and thus, could not support a claim of negligence but was “admissible to provide some information about whether the defendant met the applicable standard of care.” 7 See 169 Or App at 475-76 nn 1-3. 8 Those CSA standards were orig

2000Similarly, Brennan v. City of Eugene, 285 Or 401,407 , 591 P2d 719 (1979), involved a common-law negligence claim where the court concluded that the city’s “agent had an employment responsibility to process license applications pursuant to the requirements of the ordinance.” Additionally, in Harris v. Sanders, 142 Or App 126 , 919 P2d 512 , rev den 324 Or 322 (1996), the plaintiff appealed from a directed verdict for defendants on her claim that they were negligent per se because they violated an ordinance by failing to remove leaves from sidewalks abutting their property that caused her injur

2000Similarly, Brennan v. City of Eugene, 285 Or 401,407 , 591 P2d 719 (1979), involved a common-law negligence claim where the court concluded that the city’s “agent had an employment responsibility to process license applications pursuant to the requirements of the ordinance.” Additionally, in Harris v. Sanders, 142 Or App 126 , 919 P2d 512 , rev den 324 Or 322 (1996), the plaintiff appealed from a directed verdict for defendants on her claim that they were negligent per se because they violated an ordinance by failing to remove leaves from sidewalks abutting their property that caused her injur

2000Similarly, Brennan v. City of Eugene, 285 Or 401,407 , 591 P2d 719 (1979), involved a common-law negligence claim where the court concluded that the city’s “agent had an employment responsibility to process license applications pursuant to the requirements of the ordinance.” Additionally, in Harris v. Sanders, 142 Or App 126 , 919 P2d 512 , rev den 324 Or 322 (1996), the plaintiff appealed from a directed verdict for defendants on her claim that they were negligent per se because they violated an ordinance by failing to remove leaves from sidewalks abutting their property that caused her injur

2000Similarly, Brennan v. City of Eugene, 285 Or 401,407 , 591 P2d 719 (1979), involved a common-law negligence claim where the court concluded that the city’s “agent had an employment responsibility to process license applications pursuant to the requirements of the ordinance.” Additionally, in Harris v. Sanders, 142 Or App 126 , 919 P2d 512 , rev den 324 Or 322 (1996), the plaintiff appealed from a directed verdict for defendants on her claim that they were negligent per se because they violated an ordinance by failing to remove leaves from sidewalks abutting their property that caused her injur

2000German v. Murphy, 146 Or App 349 , 932 P2d 580 (1997). 5 Plaintiff argues, however, that German was wrong in that regard because the OSEA itself provides that general contractors assume all obligations of “employers” under the occupational safety rules.

2000German v. Murphy, 146 Or App 349 , 932 P2d 580 (1997). 5 Plaintiff argues, however, that German was wrong in that regard because the OSEA itself provides that general contractors assume all obligations of “employers” under the occupational safety rules.

1998Id. at 426-27 .

1997James v. Carnation Co., 278 Or 65 , 562 P2d 1192 (1977).

1997James v. Carnation Co., 278 Or 65 , 562 P2d 1192 (1977).