§33.4 Statutory Duties That Are the Bases for Common-law Torts

LibraryTorts (OSBar) (2012 Ed.)
§33.4 STATUTORY DUTIES THAT ARE THE BASES FOR COMMON-LAW TORTS

§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....

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