§ 9.5 Procedural Issues

• Library: Damages (OSBar) (2016 Ed.)

§ 9.5 PROCEDURAL ISSUES

§ 9.5-1 Special Questions

ORS 31.605 provides as follows:

(1) When requested by any party the trier of fact shall answer special questions indicating:
(a) The amount of damages to which a party seeking recovery would be entitled, assuming that party not to be at fault.

(b) The degree of fault of each person specified in ORS 31.600(2). The degree of each person's fault so determined shall be expressed as a percentage of the total fault attributable to all persons considered by the trier of fact pursuant to ORS 31.600.

(2) A jury shall be informed of the legal effect of its answer to the questions listed in subsection (1) of this section.

(3) The jury shall not be informed of any settlement made by the claimant for damages arising out of the injury or death that is the subject of the action.

(4) For the purposes of subsection (1) of this section, the court may order that two or more persons be considered a single person for the purpose of determining the degree of fault of the persons specified in ORS 31.600(2).

PRACTICE TIP: Although there is no stated time in which the request for special questions must be made, most are made as a matter of practice at the commencement of trial, with submission to the trial court of the proposed verdict form including such questions. If neither party requests a special verdict containing the questions provided in ORS 31.605, then submission of a general verdict by the trial court is appropriate.

§ 9.5-2 Total Damages

Under ORS 31.605(1)(a), any party can ask the jury to indicate "[t]he amount of damages to which a party seeking recovery would be entitled, assuming that party not to be at fault." Accordingly, the requesting party is entitled to a clear statement requiring the jury to set forth all the damages that the party is entitled to recover and directing the jury not to reduce the damages by the percentage of fault. In the absence of such a statement, the verdict will prevail, even if it is subsequently determined that the jury reduced the total damages by the percentage of fault. Schmitz v. U.S. Bakery, 41 Or App 749, 752, 599 P2d 471 (1979).

PRACTICE TIP: Problems in this area can be avoided by the use of the verdict forms provided in the Oregon Uniform Civil Jury Instructions and noted in § 9.5-7.

§ 9.5-3 Degree of Fault in Percentages

If requested by any party, ORS 31.605(1)(b) requires the jury to answer a special question indicating "[t]he degree of fault of each person specified in ORS 31.600(2) . . . expressed as a percentage of the total fault attributable to all persons considered by the trier of fact pursuant to ORS 31.600." In its simplest form, this is accomplished by the following example:

Claimant (Name) ___%

Defendant (Name) ___%

Third-Party Defendant (Name) ___%

Settled Party (Name) ___%

TOTAL 100%

Proper verdicts are ensured when all persons among whom fault is to be allocated are listed in this manner, the total equals 100 percent, and all pertinent questions relating to each person's fault are detailed.

NOTE: Under ORS 31.610(2), the court must enter a judgment against any third-party defendant found to be liable, even if the claimant did not

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