Or. Rev. Stat. § 31.600

Section 31.600 does not permit apportionment of liability between negligent and intentional tortfeasors because “fault” excludes intentional conduct to which contributory negligence was not a defense.

Shin v. Sunriver Preparatory School, Inc. · filed 2005-04-27(1), (2)

In conclusion, we hold that, when the legislature changed “negligence” to “fault” in the comparative fault statutes in 1975, it intended to extend comparative fault to tortious conduct to which contributory negligence was a valid defense at common law. References to “fault” in ORS 31.600 and related statutes do not encompass intentional conduct to which contributory negligence was not a defense; apportionment of liability between negligent and intentional tortfeasors therefore is not permitted under those statutes. The trial court did not err in refusing to instruct the jury otherwise.

Section 31.600 replaces contributory negligence with comparative fault, requiring the plaintiff's negligence and the property owner or occupier's negligence to be compared in a negligence-based premises-liability case.

Maas v. Willer · filed 2005-12-14

The legislature has abolished both contributory negligence and implied assumption of the risk as defenses and has replaced them with comparative fault. ... See ... ORS 31.600 (replacing contributory negligence standard with comparative fault system); ORS 31.620(2) (abolishing doctrine of implied assumption of the risk). Accordingly, in premises liability cases grounded in negligence and in which comparative negligence is asserted as a defense, it is necessary to compare the negligence, if any, of the property owner or occupier and ... the plaintiff in determining whether and the extent to which the defendant is liable to the plaintiff.

Section 31.600 uses comparative fault in premises-liability cases: an invitee's negligence may be compared with the possessor's fault when it relates and contributes to the harm or risk, recovery is barred when the claimant's fault exceeds the combined fault of the other contributors, and damages are reduced proportionally.

Appleyard v. Port of Portland · filed 2021-05-19(1)

In determining whether and to what extent a possessor of land is liable for injuries caused by a condition on the land, the jury must compare each party’s relative fault for the invitee’s harm. ORS 31.600 (providing that fault attributable to a plaintiff is not a bar to recovery if it does not exceed the combined fault of all other contributors, but requiring damages to be “diminished in the proportion to the percentage of fault attributable to the” plaintiff). ... Business invitees must always exercise reasonable care for their own safety when on premises of others. Notwithstanding that duty, an owner or occupier of premises has a separate duty to maintain reasonably safe premises for its invitees, and neither an invitee’s duty of care nor a failure to exercise it absolves the owner or occupier of its own duty. However, an invitee’s failure to exercise reasonable care for his or her own safety may be the basis of a comparative-fault defense if the invitee’s negligence relates and contributes to the harm or risk of harm created by the defendant’s negligence. Under those circumstances, whether the plaintiff knew or could have known that an alleged dangerous condition was on the premises is not determinative.

Section 31.600 permits fault-based apportionment only when liability is several, not when liability is joint and several.

State v. Jensen · filed 2021-01-27

Moreover, apportionment based on fault under ORS 31.600 applies only if liability is several. See ORS 31.610(2) (providing that comparative fault applies where liability is several).

Section 31.600(2) directs the factfinder to compare the claimant’s fault with that of the defendant, liable third-party defendants, and settling persons, but in a medical-malpractice wrongful-death action it does not permit comparison based on a beneficiary’s pretreatment conduct that merely created the need for treatment.

Son v. Ashland Community Healthcare Services · filed 2010-12-15(2)

By its explicit terms, the comparative fault statute, ORS 31.600(2), allows the trier of fact to compare the fault of four groups: (1) the claimant, (2) any party against whom recovery is sought, (3) third-party defendants liable to the claimant, and (4) any person with whom the claimant has settled. ... We agree with plaintiff that, as a matter of law, defendants’ affirmative defense alleging Burns’s comparative negligence is improper. ... We conclude that the same rule applies to statutory beneficiaries, and the trial court erred by allowing the affirmative defense alleging Burns’s comparative fault.

Section 31.600(2) allows fault to be allocated to a person with whom the claimant has settled.

A.F. v. Evans · filed 2021-09-17(2)

Prior to the settlement agreement, Burcart and Dall were defendants in both cases and the issue of their fault relative to DHS would necessarily have been resolved at trial. See ORS 31.600(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.”). ... It only became necessary for the DHS Defendants to raise the fourth affirmative defense once Burcart and Dall were taken out of the case.

Section 31.600 requires the trier of fact to compare the fault of specified parties, and requires a defendant seeking to have a codefendant’s unpleaded negligence considered in that comparison to plead the facts establishing that negligence.

Lasley v. Combined Transport, Inc. · filed 2011-09-22(2) (3)

ORS 31.600 requires the jury to compare the fault of the parties, but, for the reasons that we have explained, a defendant who wishes to have the jury consider the unpleaded negligence of a codefendant in making that comparison is required to plead the facts establishing that negligence. ... Thus, in this case, to have the jury consider evidence of Clemmer’s intoxication in comparing the fault of the parties, either plaintiff or Combined Transport had to allege those facts. Plaintiff did not do so, and the pleading burden fell on Combined Transport.

Subsection (2) requires the factfinder to compare the claimant’s fault with that of defendants, liable third-party tort defendants, and settling persons, even when the claimant did not directly sue the third-party defendant.

Eclectic Investmetn, LLC v. Patterson · filed 2015-03-18(2)

ORS 31.600(2) requires that the trier of fact “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.” ... Those statutes set out a comprehensive system for allocating fault between the parties and distributing liability for damages severally in accordance with that allocation. ... In cases in which the Oregon comparative negligence statutes apply and in which jurors allocate fault—and thereby responsibility—for payment of damages between tortfeasors, and each tortfeasor’s liability is several only, a judicially created means of allocating fault and responsibility is not necessary or justified.

Section 31.600 permits recovery with damages reduced proportionally when the claimant's fault is no greater than the combined fault of the other specified actors, while fault apportionment is ordinarily for the jury.

Towe v. Sacagawea, Inc. · filed 2015-03-26(1)

Under that approach, a plaintiff’s negligence results in reducing the damages that the plaintiff can recover, rather than barring any recovery, as long as the plaintiff is not more responsible for the injuries than all other actors combined. ... We agree with plaintiff that, if that was the trial court’s rationale, the trial court erred. The apportionment of negligence as between multiple negligent actors is, ordinarily, a question for a jury.

Section 31.600(2) requires the trier of fact to compare the claimant’s fault with the fault of each party against whom recovery is sought, but it does not permit assigning a product user fault for negligence that cannot be held against that user in the products-liability assessment.

Purdy v. Deere & Co./Norton · filed 2021-05-12(2)

“ORS 31.600(2) provides, in part: ... ‘The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought[.]’ ... A jury should not be permitted to attribute to the user fault for the type of negligence for which the user cannot be held liable when making a comparative-fault assessment for injuries suffered by a plaintiff from the use of the defective product. ... We conclude, for that reason, that the trial court did not err in giving the instruction that the jury could not consider Norton’s negligence due to his inadvertent, inattentive, or awkward failure to discover or guard against the defect in assessing Norton’s percentage of fault.

Section 31.600(1) permits a claimant's fault to reduce damages only when the defendant's conduct is of a kind for which contributory negligence would have been a defense; comparative fault is unavailable for wanton or more culpable conduct.

State v. Gutierrez-Medina · filed 2019-06-06(1)

This court has explained that the 1975 amendment was intended to cover "actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense." Johnson v. Tilden , 278 Or. 11, 17, 562 P.2d 1188 (1977). In reaching that conclusion, we emphasized the statement of Representative Dave Frohnmayer, that, under the 1975 changes, "[a]pportionment of damages is expressly extended to all actions to recover damages for injury to persons or property in which contributory negligence may properly be asserted as a defense." Id. at 17, 562 P.2d 1188 (quoting Minutes, House Judiciary Committee, May 28, 1975, Appendix G (written statement by Representative Dave Frohnmayer)). That legislative intention is reflected in the text of the statute, which specifies that the legislature did not intend to create any defense that did not otherwise exist. Thus, the rule of comparative fault would reduce defendant's responsibility for the victim's full damages, even in a hypothetical civil action, only if defendant's conduct is equivalent to conduct for which the defense of contributory negligence would have been available before 1971.

Section 31.600's comparative-fault defense does not apply to a tenant's ORLTA habitability claim for injury caused by an uninhabitable condition.

Thomas v. Dillon Family Limited Partnership II · filed 2022-05-04(1)

Considering all of the above, we are not persuaded that language in ORS 31.600(1) extending the comparative-fault defense to any “action * * * to recover damages for death or injury to person” controls and permits the application of that defense to tenant’s ORLTA claim when the express language in ORS 90.360(2) clearly instructs otherwise.

Section 31.600 allows comparative fault only when contributory negligence would have been a defense at common law.

Raboin · filed 2026-01-20(1)

Under Oregon law, a comparative fault defense prevents a negligent plaintiff from recovering his percentage fault of damages. See ORS 31.600(1), (2) (“The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought” and “any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.”). This statutory affirmative defense can be asserted in all damages actions in which the defense of contributory negligence could have been asserted at common law. ... Because wrongful discharge is an intentional tort, contributory negligence is not a defense at common law. See Cook, 207 Or. at 42-43. Accordingly, Workday cannot raise comparative fault.

Section 31.600(2) requires the trier of fact to compare the claimant’s fault with parties against whom recovery is sought, while barring comparison of fault with persons immune from liability.

Poe v. Cook · filed 2019-08-14(2)

Although Or. Rev. Stat. § 31.600(2) provides that “there shall be no comparison of fault with any person: (a) Who is immune from liability to the claimant,” it does not make sense to read the statute as saying a plaintiff cannot be charged with comparative negligence. More importantly, the statute also reads, “The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought . . . .” Id. (emphasis added). Thus, Oregon law is mandatory that the fault of plaintiff as “the claimant” must be compared with those of defendants, i.e., those “against whom recovery is sought”.

ORS 31.600's comparative-fault defense does not apply to restitution awarded under ORS 811.706.

State v. Whiteside · filed 2020-04-08(1)

Therefore, without any textual indication that the legislature intended to incorporate civil liability concepts into the hit-and-run restitution statutory framework, we hold that defendant cannot avail herself of the comparative fault defense found in ORS 31.600.

Section 31.600(1) reduces damages a defendant would otherwise owe in proportion to the plaintiff’s fault, or eliminates them when the plaintiff’s fault exceeds the combined fault of the defendant and other listed parties.

Berger v. Safeco Ins. Co. · filed 2020-07-08(1)

ORS 31.600(1) provides that any damages a defendant would otherwise owe to a plaintiff are reduced in proportion to the plaintiff’s fault or eliminated altogether if plaintiff’s fault exceeds the combined fault of the defendant and other parties listed in the statute.

Section 31.600 permits comparing a blameless plaintiff’s zero fault with the fault of defendants and other appropriate persons, and places on a defendant alleging a settled person’s fault the burden to prove that the fault contributed to the injury.

A.F. v. Evans · filed 2022-05-16(2), (3)

These cases foreclose Plaintiffs’ argument. They also comport with the text of the statute, which requires comparing the Plaintiffs’ fault (here, all parties agree that Plaintiffs’ fault is zero), with the fault of the State Defendants and any other appropriate persons. The fact that all parties agree that Plaintiffs’ fault is zero does not foreclose comparing the fault of the other persons described in the statute. ... A defendant “who alleges that a person who has settled with the claimant is at fault in the matter, has the burden of proof in establishing [that the other person was at fault and that that fault was a contributing cause to injury or death]” Lasley, 315 Or. at 16 (quoting ORS § 31.600(3) (alterations and emphasis added in Lasley)).

Section 31.600 makes the comparative-fault defense unavailable for wanton or reckless negligence and excludes wanton or intentional tortfeasors from the fault-comparison group.

Miller v. Agripac, Inc. · filed 2022-10-05(1) (2)

Together, our rejection of the second and third assignments of error means that the jury’s finding that defendant was “reckless in its negligence” will stand. It follows, under well-established case law, that the defense of comparative fault is unavailable to defendant. ... In any event, the logic of Shin necessarily applies to both the third and fourth categories of tortious conduct. There is no basis to distinguish between the third and fourth categories of conduct for comparative-fault purposes, and Shin’s reasoning is grounded almost entirely in the comparative-fault statute, ORS 31.600.

Section 31.600(2) bars comparing a third party’s fault when the claimant’s claim against that third party is barred by the statute of limitations.

Hogan v. United States · filed 2024-01-22(2)

In sum, Third Party Defendants are not subject to action because the statute of limitations on negligence claims against them has run, so their fault cannot be compared with the fault of Defendant. Defendant’s first affirmative defense is insufficient to the extent it seeks to compare Defendant’s fault with the fault of Third Party Defendants.

Section 31.600(5) permits a party to claim it is not at fault when the injury was solely and exclusively caused by a nonparty; but-for or substantial-factor causation alone does not establish that defense.

Rodriguez v. Hunt · filed 2024-09-25(5)

Defendants’ affirmative defense mirrors the language of ORS 31.600(5) which provides that a party may allege that it is not at fault “because the injury or death was the sole and exclusive fault of a person who is not a party in the matter.” ... Applying that logic to the circumstances and legal issue here, just because Plaintiff would not have been shot “but for” Ms. Rogers and Mr. Cozad’s conduct (assuming a jury so concluded), that does not mean their conduct was the sole cause of his injury for purposes of ORS 31.600(5). And, considering the evidence in the record on the conduct of the parties to this case, no reasonable juror could so conclude.

Section 31.600 permits a named defendant to implead an unjoined allegedly at-fault tortfeasor for comparative-fault purposes, but it does not permit impleader when the tortfeasor's negligence claim is time-barred; a contribution-claim limitations period does not change that.

Hogan v. United States · filed 2024-10-09(3), (2)(c)

The right of contribution, however, is distinct from the affirmative defense of comparative fault. See Lasley v. Combined Transport, Inc., 351 Or. 1, 14 (2011) (“[A] defendant that seeks to rely on a specification of negligence not alleged by the plaintiff to establish a codefendant’s proportional share of fault must affirmatively plead that specification of negligence… not in a crossclaim for contribution.”). As such, the relevant statute of limitations for purposes of liability under Or. Rev. Stat. § 31.600 is that for negligence claims against Petit, not contribution claims. Since the statute of limitations has run for negligence claims against Petit, TPD Harney County has no right under Or. Rev. Stat. § 31.600 to implead Petit for comparison of fault.