§33.2 Commonalities

• Library: Torts (OSBar) (2012 Ed.)

§33.2 COMMONALITIES

§33.2-1 Sources of Law Other than Common Law

Liability per se, statutory duties, and statutory torts share basic commonalities. Each is derived from a focused statute or other positive source of law intended to protect persons like the plaintiff from the kind of harm that the plaintiff suffered. Each can be an intentional, a negligent, or a strict-liability claim.

§33.2-1(a) Statutes

State courts may use a focused federal or state statute as the basis of a count of liability per se. See, e.g., Cervantes v. Mattson, 90 Or App 574, 577, 752 P2d 1293 (1988) (negligence per se).

Courts may also use a focused statute that broadens duties to expand the scope of common-law torts. See Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986) (statutory duty).

Finally, when legislation prohibits or requires certain conduct, and the statute expressly or impliedly provides for a tort remedy, courts will enforce that provision unless it is unconstitutional. Oregon's implied statutory tort methodology for state statutory torts differs from federal statutory tort methodology. Compare Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983) (discussed in §33.5-3), with Franklin v. Gwinnett County Public Schools, 503 US 60, 65-66, 112 S Ct 1028, 117 L Ed2d 208 (1992).

§33.2-1(b) Administrative Rules and Regulations

Validly promulgated Oregon or federal rules and regulations may create standards of care that provide a basis for a count of negligence per se or a claim involving a statutory duty. See, e.g., Stachniewicz v. Mar-Cam Corp., 259 Or 583, 586, 488 P2d 436 (1971), overruled on other grounds, 284 Or 351 (1978) (negligence per se based on state administrative regulation); Oksenholt v. Lederle Laboratories, a Div. of American Cyanamid Corp., 294 Or 213, 218-219, 656 P2d 293 (1982) (claim based on negligence per se arose from breach of federal administrative regulation).

If authorized by statute, administrative regulations may also be the source of statutory torts. In Ettinger v. Denny Chancler Equipment Co., Inc., 139 Or App 103, 110, 910 P2d 420 (1996), statutes rendered permittees and drivers liable to government entities for damages caused by the movement of oversized loads. The agency's enabling regulations, however, provided that permittees "shall also be held responsible and liable for any and all injury to persons or damage to property resulting from the movement on said highways." Ettinger, 139 Or App at 106. The court found that the regulations were ultra vires because there was "no suggestion in those statutes . . . that they contemplate private, as opposed to governmental, rights of action for alleged violations" of maximum-size restrictions. Ettinger, 139 Or App at 110. Consequently, the plaintiff was "not within the class of persons protected by those rules." Ettinger, 139 Or App at 110.

In contrast, there is no existing Oregon authority that a governmental policy that is not part of a validly promulgated governmental rule or regulation suffices as a basis for either negligence per se or statutory tort claim. Barringer v. Clackamas County, No. CV 09-068-AC, 2010 WL 5349206, at *11 (D Or 2010).

PRACTICE TIP: When liability is based on an agency rule or regulation, the lawyer should discern whether the rule or regulation is consistent with the intent of the authorizing statute. See Ettinger, 139 Or App at 110; see also Oksenholt, 294 Or at 220; Wickhan v. Apollo, Inc., No. 05-0352-HU, 2005 WL 1705028 (D Or June 28, 2005).

§33.2-1(c) Municipal Ordinances

Municipal ordinances may create or affect a tort action, and most courts and commentators apply...