wrongful death claim in Oregon

2007For example, in Greist v. Phillips, 322 Or 281, 291 , 906 P2d 789 (1995), this court held a statutory substitute remedy to be “substantial.” In that case, the court reviewed the application of the damages limitation set forth in ORS 18.560 13 to a wrongful death claim.

2007For example, in Greist v. Phillips, 322 Or 281, 291 , 906 P2d 789 (1995), this court held a statutory substitute remedy to be “substantial.” In that case, the court reviewed the application of the damages limitation set forth in ORS 18.560 13 to a wrongful death claim.

2016Id. at 152 .

2016Id. at 152 .

2001Robins, Inc., 59 Or.App. 310 , 650 P.2d 1046 (1982).

2001Robins, Inc., 59 Or.App. 310 , 650 P.2d 1046 (1982).

2022Cite as 320 Or App 534 (2022) 557 Defendants advance a variety of reasons that, under their view of the law that we have set out above, a plaintiff cannot allege both a wrongful death claim and a claim for loss of chance of recovery based on the same facts and circumstances.

2022The legislature used the same phrasing that appears in ORS 30.075(1) to describe the circumstances under which the personal representative of the decedent or some other per- son may bring a wrongful death claim: ORS 30.020(1) pro- vides that, “[w]hen the death of a person is caused by the wrongful act or omission of another,” specified people “may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, Cite as 320 Or App 534 (2022) 559 against the wrongdoer for an injury done by the same act or omission.” (Emphasis added.) If we were t

2011Neher, 142 Or App at 542 .

2009We review de novo, Stanfield v. Stanfield, 192 Or App 447, 449 , 86 P3d 77 , rev den, 337 Or 160 (2004), and affirm.

2009We review de novo, Stanfield v. Stanfield, 192 Or App 447, 449 , 86 P3d 77 , rev den, 337 Or 160 (2004), and affirm.

2009We review de novo, Stanfield v. Stanfield, 192 Or App 447, 449 , 86 P3d 77 , rev den, 337 Or 160 (2004), and affirm.

2007In Juarez v. Windsor Rock Products, Inc., 341 Or 160 , 144 P3d 211 (2006), the Supreme Court refused to overrule its prior cases rejecting a common-law wrongful death cause of action. 8 See Storm, 334 Or at 222 n 4, (“Since at least 1891, [we] ha[ve] adhered to the view that no right of action for wrongful death existed at common law.”); see also Kilminster v. Day Management Corp., 323 Or 618, 627 , 919 P2d 474 (1996) (“Oregon has no common law action for wrongful death.”).

2007In Juarez v. Windsor Rock Products, Inc., 341 Or 160 , 144 P3d 211 (2006), the Supreme Court refused to overrule its prior cases rejecting a common-law wrongful death cause of action. 8 See Storm, 334 Or at 222 n 4, (“Since at least 1891, [we] ha[ve] adhered to the view that no right of action for wrongful death existed at common law.”); see also Kilminster v. Day Management Corp., 323 Or 618, 627 , 919 P2d 474 (1996) (“Oregon has no common law action for wrongful death.”).

2007The court explained that, by the time of the decedent’s death, the decedent already had settled his claim against the street-car company, leaving no further basis for a wrongful death claim. “[I]t would be unreasonable to hold,” the court commented, “that the defendant, after fairly compensating the injured man for the negligent wrong inflicted upon him, should be compelled to search out all others of his relatives and litigate or settle with them.” Id. at 524 .

2007The court explained that, by the time of the decedent’s death, the decedent already had settled his claim against the street-car company, leaving no further basis for a wrongful death claim. “[I]t would be unreasonable to hold,” the court commented, “that the defendant, after fairly compensating the injured man for the negligent wrong inflicted upon him, should be compelled to search out all others of his relatives and litigate or settle with them.” Id. at 524 .

2007Second, in Piukkula v. Pillsbury Flouring Co., 150 Or 304 , 42 P2d 921 (1935), the decedent became ill as a result of exposure to flour dust during many years of work for Pilllsbury.

2007Second, in Piukkula v. Pillsbury Flouring Co., 150 Or 304 , 42 P2d 921 (1935), the decedent became ill as a result of exposure to flour dust during many years of work for Pilllsbury.

2006We did not need to address the defendant’s contention that a wrongful death action did not exist at common law because we concluded that, at common law, there was no rule of discovery, and the plaintiffs claim would have been subject to and barred by the statute of limitations, which also served as a statute of ultimate repose. 176 Or App at 481-82 . 8 An action for medical negligence was recognized at least as far back as the middle of the eighteenth century. 3 William Blackstone, Commentaries on the Laws of England 122 (1768). 9 In Allaire, the Illinois Supreme Court followed Dietrich .

2005Co., 177 Or App 621 , 33 P3d 1075 (2001) (denying plaintiffs petition for conditional award of attorney fees based on reversal of summary judgment in wrongful death action). 2 The circumstances of the defense of the wrongful death claim are recounted in detail below in our discussion of defendant’s compensatory and punitive liability for “bad faith” failure to settle within policy limits.

2005Co., 177 Or App 621 , 33 P3d 1075 (2001) (denying plaintiffs petition for conditional award of attorney fees based on reversal of summary judgment in wrongful death action). 2 The circumstances of the defense of the wrongful death claim are recounted in detail below in our discussion of defendant’s compensatory and punitive liability for “bad faith” failure to settle within policy limits.

2001The first certified question asked whether “the statute of limitations for wrongful death claims * * * or the statute of limitations for product liability actions * * * appl[ies] to a wrongful death claim based on the theory of product liability[.]” Id.

2001The first certified question asked whether "the statute of limitations for wrongful death claims * * * or the statute of limitations for product liability actions * * * appl[ies] to a wrongful death claim based on the theory of product liability[.]" Id.

2001Similarly, that issue was not before us in Border v. Indian Head Industries, Inc., 101 Or.App. 556 , 792 P.2d 111 (1990), in which we held that the discovery rule cannot apply to a statute of ultimate repose. [4] The court did not say that Korbut was controlling precedent on the issue of whether ORS 30.905(2) controlled over ORS 30.020(1) for purposes of a products liability case. [5] One concern underlying the majority's statutory interpretation appears to be that plaintiff has been misled into believing that his claim was governed by the three-year statute of limitations.

2001Similarly, that issue was not before us in Border v. Indian Head Industries, Inc., 101 Or.App. 556 , 792 P.2d 111 (1990), in which we held that the discovery rule cannot apply to a statute of ultimate repose. [4] The court did not say that Korbut was controlling precedent on the issue of whether ORS 30.905(2) controlled over ORS 30.020(1) for purposes of a products liability case. [5] One concern underlying the majority's statutory interpretation appears to be that plaintiff has been misled into believing that his claim was governed by the three-year statute of limitations.

2000In Libbee , the court addressed the question of whether a viable fetus that was stillborn due to medical negligence had a cause of action under the Oregon wrongful death statutes. [6] In Libbee , the pregnant mother went into labor and was admitted into the defendant hospital some six weeks after her expected due date. 268 Or. at 259-60 , 518 P.2d 636 .

2000In Libbee , the court addressed the question of whether a viable fetus that was stillborn due to medical negligence had a cause of action under the Oregon wrongful death statutes. [6] In Libbee , the pregnant mother went into labor and was admitted into the defendant hospital some six weeks after her expected due date. 268 Or. at 259-60 , 518 P.2d 636 .

1996As the Supreme Court said in Christensen v. Epley, 287 Or 539 , 601 P2d 1216 (1979), when the personal representative of an estate brings a wrongful death claim under the OTCA, the representative sues on behalf of the decedent’s beneficiaries, whose number determines the number of “claims” and therefore the number of “claimants.” By its terms, the $100,000 special damages limitation in ORS 30.270(1)(b) applies to “any claimant” and therefore limits the amount that each claimant may recover as special damages.

1996As the Supreme Court said in Christensen v. Epley, 287 Or 539 , 601 P2d 1216 (1979), when the personal representative of an estate brings a wrongful death claim under the OTCA, the representative sues on behalf of the decedent’s beneficiaries, whose number determines the number of “claims” and therefore the number of “claimants.” By its terms, the $100,000 special damages limitation in ORS 30.270(1)(b) applies to “any claimant” and therefore limits the amount that each claimant may recover as special damages.

1996Id. at 24-25 .

1993In reaching its decision, the court retreated from a general common law rule that parents are always immune in negligence actions brought by their children. 296 Or. at 731 , 681 P.2d 776 .

1993In reaching its decision, the court retreated from a general common law rule that parents are always immune in negligence actions brought by their children. 296 Or. at 731 , 681 P.2d 776 .

1992However, the majority is wrong in reversing the dismissal of the child's personal injury claim, because it fails to analyze Banda v. Danner, 87 Or.App. 69 , 741 P.2d 514 (1987), aff'd, 307 Or. 302 , 766 P.2d 385 (1988), and says that our later decision in Lawson v. Coos Co. Sch.

1992However, the majority is wrong in reversing the dismissal of the child's personal injury claim, because it fails to analyze Banda v. Danner, 87 Or.App. 69 , 741 P.2d 514 (1987), aff'd, 307 Or. 302 , 766 P.2d 385 (1988), and says that our later decision in Lawson v. Coos Co. Sch.

1992However, the majority is wrong in reversing the dismissal of the child's personal injury claim, because it fails to analyze Banda v. Danner, 87 Or.App. 69 , 741 P.2d 514 (1987), aff'd, 307 Or. 302 , 766 P.2d 385 (1988), and says that our later decision in Lawson v. Coos Co. Sch.

1992However, the majority is wrong in reversing the dismissal of the child's personal injury claim, because it fails to analyze Banda v. Danner, 87 Or.App. 69 , 741 P.2d 514 (1987), aff'd, 307 Or. 302 , 766 P.2d 385 (1988), and says that our later decision in Lawson v. Coos Co. Sch.

1992Defendant relies primarily on Eldridge v. Eastmoreland General Hospital, 307 Or 500 , 769 P2d 775 (1989).

1992Defendant relies primarily on Eldridge v. Eastmoreland General Hospital, 307 Or 500 , 769 P2d 775 (1989).

1987Even assuming that a wrongful death action would have been time-barred, the standard is not whether the victim had a claim against defendant at a particular time but whether damages were caused by conduct “for which the defendant could have been civilly liable.” State v. Dillon, supra, 292 Or at 182 .

1987As set out earlier, phrasing a conclusion in a particular case in terms of “duty” or “no duty,” without reference to any external standard, tends to turn into an apparent rule of law what may be only a determination concerning foreseeability in the circumstances of that case. 15 The point is stated more accurately in Cain v. Rijken, *17 300 Or 706 , 717 P2d 140 (1986), which involved a wrongful death claim against a hospital for negligently allowing a psychiatric patient to drive an automobile, with fatal consequences.

1987As set out earlier, phrasing a conclusion in a particular case in terms of “duty” or “no duty,” without reference to any external standard, tends to turn into an apparent rule of law what may be only a determination concerning foreseeability in the circumstances of that case. 15 The point is stated more accurately in Cain v. Rijken, *17 300 Or 706 , 717 P2d 140 (1986), which involved a wrongful death claim against a hospital for negligently allowing a psychiatric patient to drive an automobile, with fatal consequences.

1986The rationale for the relation back doctrine under ORCP 23C, as it applies to previously named defendants, was articulated in Welch v. Bancorp Management Services, 296 Or 208 , 675 P2d 172 (1983): “The apparent rationale for allowing a post-limitation amendment to relate back to the pre-limitation pleading, and thereby defeat the statute of limitations, is that a party who is notified of litigation concerning certain conduct or a given transaction or occurrence through the original complaint, has been given the notice that the statute of limitations was intended to assure.” 296 Or at 221 .

1986The rationale for the relation back doctrine under ORCP 23C, as it applies to previously named defendants, was articulated in Welch v. Bancorp Management Services, 296 Or 208 , 675 P2d 172 (1983): “The apparent rationale for allowing a post-limitation amendment to relate back to the pre-limitation pleading, and thereby defeat the statute of limitations, is that a party who is notified of litigation concerning certain conduct or a given transaction or occurrence through the original complaint, has been given the notice that the statute of limitations was intended to assure.” 296 Or at 221 .