Oregon Court of Appeals

Opinions Filed in December 2021

Diamond Heating, Inc. v. Clackamas County

Under the economic loss doctrine, Oregon imposes liability for negligence if one unreasonably creates a foreseeable risk of harm to others and the plaintiff can sufficiently allege facts establishing a duty of care beyond reasonable care.  See J.H. Kelly, LLC v. Quality Plus Services, Inc., 305 Or App 565, 572 (2020); Paul v. Providence Health Systems-Oregon, 351 Or 587, 591 (2021). "To recover damages for purely economic harm, liability 'must be predicated on some duty of the negligence act to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm.’" Id. 

Area(s) of Law:
  • Tort Law

Scott, Inc. v. City of Ontario

If a proposed land use is conditional within a zoning designation, then the use is not prohibited, and the city may not mark the application as such.

Area(s) of Law:
  • Land Use

Westhaven, LLC v. City of Dayton

The court of appeals only has jurisdiction to hear an appeal from a municipal court not of record when the petitioner challenges the constitutionality of the municipal ordinance for which he was convicted.

Area(s) of Law:
  • Appellate Procedure

Chinese Consolidated Benevolent Assn. v. Chin

ORS 31.152 does not provide authority under ORCP 54 A(3) to award “any costs and disbursements, including attorney fees, provided by contract, statute, or rule.”

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. E. J.

In order to overcome the privilege codified in ORS 419A.255, the party seeking to introduce evidence has the burden of showing that the contested records were not (1) history and prognosis information and (2) that they were not located in the supplemental confidential file or record of the case. Oregon Law Commission, Juvenile Records Work Group Report 14 (2013).

Area(s) of Law:
  • Juvenile Law

Miles v. Bi-Mart Corp.

Under ORS 656.005(7)(a), when a person is injured at work, that injury is compensable if it “aris[es] out of and in the course of employment.”

Area(s) of Law:
  • Workers Compensation

State v. Cross

“The defendant’s intent with respect to the scope of consent is unambiguously expressed, that manifestation of intent is controlling.” Id. at 539; see also State v. Winn, 361 Or 636, 643, 396 P3d 926 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Hawthorne

“An exigent circumstance is “a situation that requires police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” State v. Snow, 337 Or 219, 223, 94 P3d 872 (2004).

Area(s) of Law:
  • Criminal Procedure

Dept. of Hum. Servs. v. Z.M.

Juvenile courts may assert dependency jurisdiction over children whose conditions or circumstances are such as to endanger the welfare of the child or of others.

Area(s) of Law:
  • Juvenile Law

Moyer v. Columbia State Bank

In order to survive a motion to dismiss a breach of contract claim, plaintiffs must "plead ultimate facts... and not merely state legal conclusions", but are not required under ORCP 18 A to allege evidence. Fearing v. Butcher, 328 Or 367, 371, 977 P2d 1163 (1999).

Area(s) of Law:
  • Civil Procedure

Smith v. Airbnb, Inc.

As long as interactive computer service providers do not act in manners that transform them into content providers, their immunity under CDA 230 is not foreclosed. Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F3d 1157, 1162 (9th Cir 2008).

Area(s) of Law:
  • Civil Procedure

State v. Deatley

All investigative activities during a traffic stop are subject to subject matter and durational limitation, all activity must reasonably be related to the traffic stop or supported by an independent constitutional justification.

Area(s) of Law:
  • Criminal Procedure

State v. Stewart

In State v. Keller, 40 Or App 143, 145 (1979), the court clarified that "striking, slapping, etc. and comparable acts are not, as a matter of law, offensive physical contact within the meaning of ORS 166.065(1)(a)--instead, it remains a question for the fact-finder in each individual case whether under the specific circumstances the defendant subjected another to offensive physical contact."

Area(s) of Law:
  • Criminal Procedure

Upham v. Forster

The court has jurisdiction to enjoin public bodies from withholding records and order the production of improperly withheld documents, withholding means to retain and keep in one’s possession and control. Merely receiving the records after a lawsuit has been filed is not enough to “prevail,” Plaintiff did not revive a favorable judgment.

Area(s) of Law:
  • Civil Procedure

Dorn v. Teacher Standards and Practices Comm.

“Our review function under ORS 183.450 ‘is not to substitute a court’s findings of fact for an ALJ’s [or agency’s] findings of fact, when there is substantial evidence in the record for [a] finding. This is true even when there is also substantial evidence to the contrary.’" Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017).

Area(s) of Law:
  • Administrative Law

State v. Curiel

Fourth Degree Assault requires “substantial pain” experienced by the victim meaning the pain should not be fleeting or inconsequential. Statements which purport to explain an instance of domestic violence made within 24 hours of the incident are permissible.

Area(s) of Law:
  • Criminal Law

State v. Laune

The trial court plainly erred in assessing petitioner’s ability to pay attorney fees, it is incorrect to assume bail posted by a non-spouse third party belongs to a defendant. However, under the existing case law at the time of Defendant’s trial the court ruled correctly.

Area(s) of Law:
  • Criminal Law

State v. Summerlyn

It is plain error to instruct the jury that it can rule non-unanimously, but the unanimous guilty verdict made that error harmless. Departure from sentencing guidelines is permitted where there are compelling reasons to do so.

Area(s) of Law:
  • Criminal Procedure

State v. Venable

“When determining causation, a trial court must determine whether there is a ‘but-for’ connection between the victim’s damages and the crime and whether the victim’s economic damages were a reasonably foreseeable result of the defendant’s crime.” State v. Andrews, 366 Or 65, 69, 456 P3d 261 (2020).

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. T. L. M.

A juvenile court is authorized to order a psychological evaluation only where such an evaluation “is for a service that is rationally related to the findings that bring the child into the court’s jurisdiction.” W. C. T.,314 Or App at 776.

Area(s) of Law:
  • Juvenile Law

Double Tree Hotel v. Ansarinezhad

The plain and unambiguous text of the ORS 656.256 shows that the only plausible reading of the phrase “notice as required by this section” under subsection (4) is that such notice refers to the “notice of an accident” described in the preceding subsections (1), (2), and (3). 316 Or App 51 (2021).

Area(s) of Law:
  • Employment Law

King v. Gallagher Bassett Ins. Services

The medical causation component of claimant’s mental disorder claim presents a complex medical question that must be resolved on the basis of expert medical evidence. See Uris v. Comp. Dep’t, 247 Or 420, 426, 430 P2d 861 (l967).

Area(s) of Law:
  • Workers Compensation

Precision Castparts Corp - PCC Structurals v. Cramer

ALJs and the Workers' Compensation Board are not required to evaluate whether the ARU abused its discretion because they conduct de novo review of the ARU's impairment determination. Marvin Wood Products v. Callow, 171 Or App. 175, 180, 14 P3d 686 (2000).

Area(s) of Law:
  • Workers Compensation

State v. Austin

Under existing United States Supreme Court case law, “it is not obvious or beyond dispute that the federal constitutional right to be convicted only by unanimous jury verdict is the type of ‘relevant’ circumstance that a defendant must know for his waiver of the right to a jury trial to be knowing and intelligent.”

Area(s) of Law:
  • Criminal Law

State v. C. L. E.

Given the highly specialized and complex nature of juvenile defense, reliance on only interactions with juvenile clients--particularly those with diagnosed mental disabilities--to evaluate competency "reflects an absence of professional skill and judgment." State ex rel Juv. Dept. v. Welch, 12 Or App. 400, 507 P2d 401 (1973).

Area(s) of Law:
  • Juvenile Law

State v. Halfmoon

Under ORS 137.106(1)(a), a victim has 90 days to file for restitution for damage caused by the person convicted of a crime described in ORS 153.008; however, the 90-day timeline may be extended by the court for good cause.

Area(s) of Law:
  • Remedies

State v. Wedebrook

If a defendant is "instrumental in bringing about the error", the court is dissuaded from exercising its discretion to correct it. State v. Taylor, 295 Or App 32, 35-36, 433 P3d 486 (2018).

Area(s) of Law:
  • Criminal Law

State v. Keys

“[B]y entering a plea, without objection, in the presence of counsel, defendant waived the preliminary hearing required” by the Oregon Constitution. State v. Sheppard, 35 Or App 69, 581 P2d 549 (1978), rev den, 285 Or 1 (1979).

Area(s) of Law:
  • Criminal Procedure

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