§23.2 Theories of Liability

LibraryTorts (OSBar) (2012 Ed.)
§23.2 THEORIES OF LIABILITY

§23.2-1 Negligence

Common-law negligence is a theory of liability that nearly always applies to toxic torts. Negligence principles are discussed in chapter 8. To state a negligence claim under general principles of foreseeability, a plaintiff's complaint must allege facts from which a factfinder could determine

(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.

Solberg v. Johnson, 306 Or 484, 490-491, 760 P2d 867 (1988) (citing Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987)); Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 469 P2d 783 (1970). See UCJI Nos. 20.01-20.07 (and comments).

Under Fazzolari, the Oregon Supreme Court abandoned the traditional notion of proximate cause, as well as the concept of common-law duty in the absence of a special relationship. Fazzolari, 303 Or at 17. Instead, the court introduced a general "foreseeability" formula to replace traditional concepts of duty, breach, and causation, as those concepts were previously used in negligence cases, when determining whether a case required resolution of facts by a jury. In Fazzolari, 303 Or at 17, the court stated, however, that that general foreseeability formula applied unless the parties "invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty."

A negligence theory is particularly appropriate when the defendant knows the dangers of a substance—such as in cases of accidental spills or releases of toxic substances into the air, water, or soil—or when the defendant uses substances known to be toxic in a negligent manner that causes harm to the plaintiff—such as spraying pesticides and herbicides.

Although negligent failure to warn is a subcategory of negligence, it is also a subcategory of products liability theory. See RESTATEMENT (Second) of Torts §388 (1965); see also §23.2-7(b). However, even before failure to warn was addressed under the RESTATEMENT, supra, the Oregon federal district court concluded that a defendant was liable for personal injury resulting from the defendant's negligent failure to warn of the risks and dangers to personal safety caused by contact with ground that had been contaminated by toxic substances contained in a weed killer that the defendant manufactured. Boyl v. California Chemical Co., 221 F Supp 669, 676 (D Or 1963).

§23.2-2 Negligence Per Se

Negligence per se is a common-law, not a statutory, doctrine. In a negligence case, if the plaintiff alleges that the defendant violated a statute, ordinance, regulation, or rule, and thereby failed to meet an applicable standard of due care, the court must make a preliminary determination as a matter of law whether (1) the plaintiff falls within the class of persons whom the statute, ordinance, regulation, or rule is intended to protect; and (2) the harm that the plaintiff has suffered is the type that the statute, ordinance, regulation, or rule is intended to prevent. UCJI No. 20.03, comment; see also Barnum v. Williams, 264 Or 71, 74-75, 504 P2d 122 (1972). If so, then violation of the statute constitutes negligence per se, unless the defendant can prove by a preponderance of the evidence that in spite of the violation, the defendant was acting as a reasonably careful person under the circumstances. For further discussion of negligence per se, see chapter 33.

For example, a violation of an ordinance regarding sewage treatment would not constitute negligence per se for damage to telephone lines caused by overflowing effluents, because the statute was designed to protect human health, not telephone lines. Pacific Northwest Bell Telephone Co. v. Sanders, 69 Or App 479, 481, 686 P2d 1069 (1984). The theory of negligence per se is available only if the statute or rule directly regulates the defendant's conduct, the case turns on "risks that the rules are meant to prevent," and the plaintiff is among those that the statute is designed to protect. Shahtout By and Through Shahtout v. Emco Garbage Co., Inc., 298 Or 598, 601, 695 P2d 897 (1985). Arguably, then, a violation of ORS 468B.025(1)(a) (Oregon's water-pollution-control statute) that caused the plaintiff to incur property damage or personal injury of the type that the statute was intended to prevent could constitute negligence per se.

In certain circumstances, even though violation of a statute, ordinance, regulation, rule, or standard will not constitute negligence per se, that provision can be used as "evidence" of the standard of due care. See Shahtout, 298 Or at 604; Chartrand v. Coos Bay Tavern, Inc., 298 Or 689, 699-700, 696 P2d 513 (1985); see also Hagan v. Gemstate Mfg., Inc., 328 Or 535, 542-543, 982 P2d 1108 (1999). See also UCJI No. 20.04, comment.

§23.2-3 Trespass

Trespass is the physical invasion of a possessor's interest in the exclusive possession of land. See UCJI No. 53.01 (trespass). A trespass cause of action may arise if a toxic substance impermissibly intrudes on the plaintiff's real property. For an action to lie, the elements of trespass must exist (see chapter 7). A plaintiff has the burden of proving that the defendant physically invaded the "exclusive possession" of his or her property. Martin v. Union Pac. R. Co., 256 Or 563, 565, 474 P2d 739 (1970).

The intrusion must be...

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