§ 9.4 Difficulties in Comparing Fault

LibraryDamages (OSBar) (2016 Ed.)
§ 9.4 DIFFICULTIES IN COMPARING FAULT

§ 9.4-1 Conduct of Children

Minors are generally not held to the same standard of conduct as adults. Instead, the standard of conduct required of a minor is that of a reasonable minor of like age, intelligence, and experience. Thomas v. Inman, 282 Or 279, 285, 578 P2d 399 (1978); Simmons v. Holm, 229 Or 373, 395, 367 P2d 368 (1961). This standard applies whether the child is allegedly negligent as either a plaintiff (contributorily) or a defendant (primarily). Thomas, 282 Or at 285 n 3; Nikkila v. Niemi, 248 Or 594, 598, 433 P2d 825 (1967). But see Taylor v. Bergeron, 252 Or 247, 249, 449 P2d 147 (1969) (child may be too young to be capable of negligence as matter of law).

§ 9.4-2 Conduct of the Mentally Incompetent

Unless a plaintiff is a child, the plaintiff's insanity or other mental deficiencies do not relieve the plaintiff from liability for conduct that does not otherwise conform to the standard of a reasonably prudent person under the circumstances. Schumann v. Crofoot, 43 Or App 53, 55, 602 P2d 298 (1979) (citing with approval Restatement (Second) of Torts § 283B (1965) (supplemented periodically)).

§ 9.4-3 Conduct of the Elderly and Infirm

Elderly and infirm plaintiffs are held to a standard of conduct reasonable for similarly situated persons. See Weinstein v. Wheeler, 127 Or 406, 413, 271 P 733 (1928) (in negligence action brought by blind person, the trier of fact must consider the degree of care that an ordinarily prudent blind person would exercise under similar circumstances).

§ 9.4-4 Conduct of Automobile Passengers

Generally, automobile passengers must exercise reasonable care under the circumstances. Two circumstances frequently arise in this context: (1) failure to protest the unreasonable conduct of a driver and (2) riding with an intoxicated driver. In either circumstance, a passenger is held to the standard of a reasonably prudent person and must exercise due care. See Trotter v. McKellip, 265 Or 334, 336-37, 509 P2d 31 (1973); Bartholomew v. Oregonian Pub. Co., 188 Or 407, 413, 216 P2d 257 (1950); Stovall v. Perius, 61 Or App 650, 657-58, 659 P2d 393, rev den, 294 Or 792 (1983).

§ 9.4-5 Absent Tortfeasors

Typically, the parties whose fault will be compared under ORS 31.600(2) will all be present at trial. Prior to 1995, the determination of comparative fault was restricted to "parties before the court at the time the case [was] submitted to the fact-finder for a verdict or decision." Davis By &...

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