§33.4 Statutory Duties That Are the Bases for Common-law Torts
Library | Torts (OSBar) (2012 Ed.) |
§33.4-1 Tort Actions Based on Statutory Duties
Statutory duty claims arise when courts borrow statutory duties from statutes that satisfy the class-of-persons and type-of-harm focus tests. Statutory duty claims differ from liability per se counts: liability per se counts define standards of care for existing claims, while statutory duty claims provide common-law remedies for an expanded class of claimants. See Restatement (Third) of Torts §14, comment I (2010).
Statutory duty claims differ from statutory tort claims in that statutory tort claims expressly or impliedly create rights of action, while statutory duty claims do not. A court recognizes a statutory duty claim when it is presented with a focused statute, which neither expressly nor impliedly creates a civil remedy, and the purpose of the statute would be furthered by some form of tort.
Statutory duty claims arise when courts have not previously allowed a common-law claim and would not now allow one except for the existence of a focused statute. When courts allow such a claim, it is referred to in this chapter as a statutory duty claim.
NOTE: Statutory duty claim is not a term that the Oregon courts have adopted; it is the author's terminology. See Caroline Forell, The Statutory Duty Action in Tort: A Statutory/Common Law Hybrid, 23 Ind L Rev 781 (1990); Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What's the Difference?, 77 Or L Rev 497 (1998).
§33.4-2 Expansion of Existing Common-Law Torts
The duty set forth in a focused statute may be the basis of a new common-law negligence claim. For example, in Cain v. Rijken, 300 Or 706, 715—716, 717 P2d 140 (1986), the court noted that the mental health provider's "obligation to supervise [the patient's] conduct for the protection of the public was imposed by sources other than the common law of negligence" and that "one who violates a statute enacted for protection of others may be civilly liable in damages for injuring the protected interest even when there is no corresponding common law basis for recovery." See Blachly v. Portland Police Dept., 135 Or App 109, 116—117, 898 P2d 784 (1995) (specific statutory duties created special relationship that formed basis for common-law negligence claim).
Examples of cases in which the plaintiff alleged, but the court disallowed, claims based on the intentional, rather than negligent, violation of statutory duty include Burnette v. Wahl, 284 Or 705, 727—728, 588 P2d 1105 (1978) (Linde, J., dissenting), and Bob Godfrey Pontiac, Inc. v....
To continue reading
Request your trial- Books and Journals
- Chapter 33 Negligence Per Se, Statutory Torts, and Statutory Duties
- §33.1 Introduction
- §33.2 Commonalities
- §33.3 Liability Per Se
- §33.4 Statutory Duties That Are the Bases for Common-law Torts
- §33.5 Statutory Torts
Subscribers can access the reported version of this case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a list of all the cited cases and legislation of a document.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a list of all the documents that have cited the case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see the revised versions of legislation with amendments.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see any amendments made to the case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.