disputable presumption in Oregon

2016In Wright v. SAIF, 289 Or 323 , 613 P2d 755 (1980), this court explained that the statute, as amended in 1977, created a disputable presumption, that the effect of the presumption was to shift the burden of production to the employer, and that, if an employer met its burden of production, then the trier of fact had to determine which way the evidence preponderated.

2016In Wright v. SAIF, 289 Or 323 , 613 P2d 755 (1980), this court explained that the statute, as amended in 1977, created a disputable presumption, that the effect of the presumption was to shift the burden of production to the employer, and that, if an employer met its burden of production, then the trier of fact had to determine which way the evidence preponderated.

1915Tbe plaintiffs’ possession of tbe instrument would undoubtedly have raised a disputable presumption, in tbe absence of any other evidence, that tbe writing bad been duly delivered: Flint v. Phipps, 16 Or. 437 ( 19 Pac. 543 ); Swank v. Swank, 37 Or. 439 ( 61 Pac. 846 ); Pierson v. Fisher, 48 Or. 223 ( 85 Pac. 621 ); State v. Leonard, 73 Or. 451 ( 144 Pac. 113, 681 ).

1915Tbe plaintiffs’ possession of tbe instrument would undoubtedly have raised a disputable presumption, in tbe absence of any other evidence, that tbe writing bad been duly delivered: Flint v. Phipps, 16 Or. 437 ( 19 Pac. 543 ); Swank v. Swank, 37 Or. 439 ( 61 Pac. 846 ); Pierson v. Fisher, 48 Or. 223 ( 85 Pac. 621 ); State v. Leonard, 73 Or. 451 ( 144 Pac. 113, 681 ).

1967“The executed deed having been found in the possession of the * * * grantee named therein, a presumption arises that the * * * instrument was regularly delivered, and the burden of overcoming this disputable presumption, which results from such fact, is imposed on the person alleging to the contrary: * * Pierson v. Fisher, supra, 48 Or at 232-233 .

1915Tbe plaintiffs’ possession of tbe instrument would undoubtedly have raised a disputable presumption, in tbe absence of any other evidence, that tbe writing bad been duly delivered: Flint v. Phipps, 16 Or. 437 ( 19 Pac. 543 ); Swank v. Swank, 37 Or. 439 ( 61 Pac. 846 ); Pierson v. Fisher, 48 Or. 223 ( 85 Pac. 621 ); State v. Leonard, 73 Or. 451 ( 144 Pac. 113, 681 ).

2016Id. at 331-32 .2 The court did not decide whether the presumption also shifted the burden of persuasion to the employer; rather, the court left open the 2 As we read Wright, the court used the phrase “disputable presumption” as a synonym for “rebuttable presumption.” See Wright, 289 Or at 331-32 ; cf. State v. Dahl, 336 Or 481, 486 , 87 P3d 650 (2004) (discussing rebuttable presumptions).

2016Id. at 331-32 .2 The court did not decide whether the presumption also shifted the burden of persuasion to the employer; rather, the court left open the 2 As we read Wright, the court used the phrase “disputable presumption” as a synonym for “rebuttable presumption.” See Wright, 289 Or at 331-32 ; cf. State v. Dahl, 336 Or 481, 486 , 87 P3d 650 (2004) (discussing rebuttable presumptions).

1976In Ring v. Patterson, 137 Or 234 , 1 P2d 1105 (1931) (relating to the Board of Pilot Commissioners’ discretion to grant pilot licenses), the court noted that the statutory presumption that official duty has been regularly performed includes the disputable presumption that a public officer has reasonably exercised the discretionary power vested in him.

1976In Ring v. Patterson, 137 Or 234 , 1 P2d 1105 (1931) (relating to the Board of Pilot Commissioners’ discretion to grant pilot licenses), the court noted that the statutory presumption that official duty has been regularly performed includes the disputable presumption that a public officer has reasonably exercised the discretionary power vested in him.

1950In In re Provolt’s Estate, 175 Or. 128, 131 , 151 P. (2d) 736 , it is said: “The appointment of a guardian creates a presumption of mental incapacity to make a will, but it is a disputable presumption which may be overcome by evidence to the contrary. ’ ’ Citing cases. *22 The condition of the testator’s mind at the'precise time of the execution of the will is the determining factor.

1950In In re Provolt’s Estate, 175 Or. 128, 131 , 151 P. (2d) 736 , it is said: “The appointment of a guardian creates a presumption of mental incapacity to make a will, but it is a disputable presumption which may be overcome by evidence to the contrary. ’ ’ Citing cases. *22 The condition of the testator’s mind at the'precise time of the execution of the will is the determining factor.

1905In the case of Hammer v. Downing, 41 Or. 234 ( 66 Pac. 916 ), the disputable presumption that a thing once proved to exist continues as long as is usual with things of that nature * was invoked in aid of the finding that the defendant still had in his possession a sum of money that he was shown to have had three months previous, and it was held to be unavailable.

1905In the case of Hammer v. Downing, 41 Or. 234 ( 66 Pac. 916 ), the disputable presumption that a thing once proved to exist continues as long as is usual with things of that nature * was invoked in aid of the finding that the defendant still had in his possession a sum of money that he was shown to have had three months previous, and it was held to be unavailable.

2013We therefore conclude that the Oregon legislature’s original intent was consistent with the intent of the drafters of the URLTA; when the Oregon legislature used the word “retaliate” in ORS 90.385, it did not intend to invoke the ancient concept of “lex talionis.” The legislature’s amendment of the ORLTA in 1979 and its deletion of the disputable presumption does not change our conclusion. 12 The legislative history of that amendment is accurately set out in Elk Creek I, 244 Or App at 388-89 , and is further discussed in Elk Creek II, 247 Or App at 580 .

2013We therefore conclude that the Oregon legislature’s original intent was consistent with the intent of the drafters of the URLTA; when the Oregon legislature used the word “retaliate” in ORS 90.385, it did not intend to invoke the ancient concept of “lex talionis.” The legislature’s amendment of the ORLTA in 1979 and its deletion of the disputable presumption does not change our conclusion. 12 The legislative history of that amendment is accurately set out in Elk Creek I, 244 Or App at 388-89 , and is further discussed in Elk Creek II, 247 Or App at 580 .

2003See generally Holcomb v. Sunderland, 321 Or 99, 105 , 894 P2d 457 (1995). 4 ORS 30.910 provides: “It is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dangerous for its intended use.” 5 In Brown , the court left open the question whether a defect that threatened only property and not persons could be “unreasonably dangerous.” Brown, 268 Or at 480 .

2003We resolved that question in Gladhart by concluding that danger to persons is not necessary. 164 Or App at 452-53 . 6 Applying ORS 30.920, a federal district court reached a similar conclusion in Carpenter v. Land O’ Lakes, Inc., 880 F Supp 758 (D Or 1995).

2003We resolved that question in Gladhart by concluding that danger to persons is not necessary. 164 Or App at 452-53 . 6 Applying ORS 30.920, a federal district court reached a similar conclusion in Carpenter v. Land O’ Lakes, Inc., 880 F Supp 758 (D Or 1995).

1983We therefore find it to be of peculiar importance that the jury in the exercise of its independent function should at least be informed by an instruction that there is a disputable presumption in favor of the decision of the commission.” 209 Or at 340 .

1982State ex rel v. Duncan, 191 Or 475, 498 , 230 P2d 773 (1951).

1982State ex rel v. Duncan, 191 Or 475, 498 , 230 P2d 773 (1951).

1980The majority states that "this is not an appropriate case * * * to decide whether a determination of negligence in a bailor-bailee case involves an inference of negligence, as opposed to a disputable presumption of negligence" because the defendant-bailee did come forward with evidence to refute the "presumption of negligence." 289 Or. at 126 , 611 P.2d at 301 n. 2.

1980The majority states that "this is not an appropriate case * * * to decide whether a determination of negligence in a bailor-bailee case involves an inference of negligence, as opposed to a disputable presumption of negligence" because the defendant-bailee did come forward with evidence to refute the "presumption of negligence." 289 Or. at 126 , 611 P.2d at 301 n. 2.

1980Denial of a claim for any condition or impairment of health arising under paragraph (b) of subsection (1) of this section must be on the basis of medical or other evidence that the cause of the condition or impairment is unrelated to the fireman’s employment.” 1 In our previous decision, we stated in applying the statutory presumption in subsection (2): "In Wick v. SAIF, 37 Or App [285, 587 P2d 477 (1978)] at 288, we applied the disputable presumption rule to firemen’s occupational diseases: " '* * * [T]he fireman’s presumption disappeared the moment that any significant evidence that a claima

1980A "* * * presumption does not endow the fact upon which it is based with any special value for evidentiary purposes. * * *” U. S. National Bank v. Lloyd’s, supra, 239 Or at 327 .

1980In Jamerson, Adm'x v. Witt, Executrix, 215 Or. 227 , 332 P.2d 1054 (1959), in considering the presumption of continuity, this court (at 237, 332 P.2d at 1058-1059 ) said that: "The disputable presumption upon which the plaintiff depends is not applicable to an act which is in a state of flux or dependent upon the will of the actor, but rather to the existence of the material object, or the continuance of a more or less static condition like sanity." If the analysis of this court in Jamerson is to be adopted, an indefinite suspension of a driver's license for failure to appear can hardly be con

1980In Jamerson, Adm'x v. Witt, Executrix, 215 Or. 227 , 332 P.2d 1054 (1959), in considering the presumption of continuity, this court (at 237, 332 P.2d at 1058-1059 ) said that: "The disputable presumption upon which the plaintiff depends is not applicable to an act which is in a state of flux or dependent upon the will of the actor, but rather to the existence of the material object, or the continuance of a more or less static condition like sanity." If the analysis of this court in Jamerson is to be adopted, an indefinite suspension of a driver's license for failure to appear can hardly be con

1980The decision was then to be made strictly by weighing the evidence and determining whether the claimant had proven causation by a preponderance.’ (Citations omitted.)” 43 Or App at 283-84 .

1980Co., 173 Or 592 , 147 P2d 227 (1944), this court examined the procedural operation of a disputable presumption.

1980Co., 173 Or 592 , 147 P2d 227 (1944), this court examined the procedural operation of a disputable presumption.

1979If you find that a firearm was pointed at another within firing range, then you are permitted, but not required, to infer that the firearm was loaded. "* * *" Citing State v. Stilling, 285 Or. 293 , 590 P.2d 1223 (1979), defendant argues that the instruction unconstitutionally shifted the burden of proof to defendant as to one element of the crime, i.e., the dangerousness of the weapon, by requiring the defendant to prove the gun was not loaded.

1979Since the prosecution in a criminal case has the burden of proving beyond a reasonable doubt each and every element of the crime charged, In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), we hold the same rule holds true as to the element of using a dangerous weapon which elevates third degree robbery to first degree robbery. [3] The Supreme Court held that the instruction challenged in Stilling did not, in fact, shift the burden of proof because it did not explain the effect of the disputable presumption and was qualified in terms of a permissive inference. 285 Or. 298 , 59

1979Since the prosecution in a criminal case has the burden of proving beyond a reasonable doubt each and every element of the crime charged, In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), we hold the same rule holds true as to the element of using a dangerous weapon which elevates third degree robbery to first degree robbery. [3] The Supreme Court held that the instruction challenged in Stilling did not, in fact, shift the burden of proof because it did not explain the effect of the disputable presumption and was qualified in terms of a permissive inference. 285 Or. 298 , 59

1979Since the prosecution in a criminal case has the burden of proving beyond a reasonable doubt each and every element of the crime charged, In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), we hold the same rule holds true as to the element of using a dangerous weapon which elevates third degree robbery to first degree robbery. [3] The Supreme Court held that the instruction challenged in Stilling did not, in fact, shift the burden of proof because it did not explain the effect of the disputable presumption and was qualified in terms of a permissive inference. 285 Or. 298 , 59

1978Pflughaupt, 26 Or App at 80-82 . 3 There is a presumption that statutes will not be applied retroactively.

1977State v. Byrd, 240 Or 159 , 400 P2d 522 , cert den 382 US 865 (1965).

1977State v. Devore, 4 Or App 425, 479 P2d 1013 (1971); cf., Kernin v. City of Coquille, 143 Or 127 , 21 P2d 1078 (1933).

1977State v. Devore, 4 Or App 425, 479 P2d 1013 (1971); cf., Kernin v. City of Coquille, 143 Or 127 , 21 P2d 1078 (1933).