§33.5 Statutory Torts

• Library: Torts (OSBar) (2012 Ed.)

§33.5 STATUTORY TORTS

§33.5-1 Overview of Statutory Torts

Statutory torts may create new tort remedies, modify existing tort actions, or codify common-law tort remedies. Depending on legislative intent, statutory torts can preclude the creation of common-law tort remedies or replace existing common-law tort remedies (e.g., workers' compensation statutes) or coexist with existing common-law tort remedies (e.g., products liability statutes). Statutory torts may be either express or implied.

To be applicable, a statutory tort must satisfy the class-of-persons and type-of-harm focus tests. Because statutory torts are legislatively created, as long as the statute is focused a court must allow the tort claim unless to do so would violate the state or federal constitution. But see Scovill By and Through Hubbard v. City of Astoria, 324 Or 159, 170—171, 921 P2d 1312 (1996) ("whether a statute that imposes a duty also gives rise to a tort claim for breach of that duty is generally a matter for court decision").

§33.5-2 Express Statutory Torts

Legislation sometimes expressly provides for a tort action; however, a full and exhaustive statutory description of a tort action is unusual. For example, the court may need to determine what kinds of defenses the legislature intended or whether the legislature intended that the statutory tort be the exclusive remedy.

Examples of statutes giving rise to express statutory torts include statutory remedies for products liability, wrongful death, antitrust, civil rights, housing, labor, and consumer actions. For illustrations of courts' analyses of these statutes, see McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001) (Oregon's products liability statutes and case law); Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990) (statutory remedy for wrongful discharge), and Brewer v. Erwin, 287 Or 435, 600 P2d 398 (1979) (private actions for breach of Oregon's Residential Landlord and Tenant Act).

§33.5-2(a) Statutory Abolition of Common-Law Remedies

The legislature may limit or completely abolish any tort remedy, whether common-law or statutory, that did not exist at common law when the Oregon Constitution was drafted in 1857. See, e.g., Storm v. McClung, 334 Or 210, 47 P3d 476 (2002); Greist v. Phillips, 322 Or 281, 295—296, 906 P2d 789 (1995).

However, the legislature may not abolish remedies that existed at common law in 1857 without simultaneously creating a constitutionally adequate remedy for breach of the common-law right. Smothers v. Gresham Transfer Inc., 332 Or 83, 124, 23 P3d 333 (2001). See also Clarke v. Oregon Health Sciences University, 343 Or 581, 610, 175 P3d 418 (2007) ("as applied" challenge to 1991 amendment to Oregon Tort Claims Act (OTCA) that limited tort recovery against a public employee to a maximum of $200,000 when plaintiff's economic damages exceeded $12 million was held to be a statutory remedy that was "an emasculated version of the remedy that was available at common law" and therefore unconstitutional under the remedy clause). Cf. Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002) (rejected a facial challenge to the same 1991 amendment to the OTCA).

The substitute remedy must be "substantial." Lawson v. Hoke, 190 Or App 92, 104-105, 77 P3d 1160 (2003), aff'd, 339 Or 253 (2005).

§33.5-2(b) Limits on Legislative Power to Abolish Common-Law Torts

As discussed in §33.5-2(a), the legislature may not abolish certain common-law causes of action unless it provides a "substitute remedial process in the event of injury to the absolute rights that the remedy clause protects." Smothers v. Gresham Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001); Clarke v. Oregon Health Sciences University, 343 Or 581, 175 P3d 418 (2007). The Smothers/Clarke limitation on the abolition of common-law rights may have broad implications. For example, Smothers overruled in part Sealey By and Through Sealey v. Hicks, 309 Or 387, 394, 788 P2d 435 (1990), in which the supreme court held that a statute of ultimate repose that barred a products liability claim that had not accrued did not offend article I, §10, of the Oregon Constitution. After concluding that constitutional considerations preserve common-law rights, the court in Smothers, 332 Or at 118-119, overruled Sealey and all other cases that used the analysis first set forth in Perozzi v. Ganiere, 149 Or 330, 40 P2d 1009 (1935), which erroneously held that the Oregon Constitution allows the legislature to abolish common-law remedies existing when the Oregon Constitution was drafted in 1857.

COMMENT: The decisions in the Smothers and Clarke cases call into question a range of statutory enactments that effectively abolished long-existing common-law claims. For example, ORS 30.936(1) (right-to-farm statute), which purports to abolish all private rights of action for nuisance and trespass arising from farming or forest practices on lands zoned for farm or forest, may be at odds with Smothers and Clarke. In contrast, a Smothers/Clarke limitation does not apply to legislatively created claims such as statutory wrongful death claims or legislative abolition of sovereign immunity and substitution of a limited remedy against the public body. See Greist v. Phillips, 322 Or 281, 295—296, 906 P2d 789 (1995); Clarke v. Oregon Health Sciences University, 343 Or 581, 597—599, 175 P3d 418 (2007) (Oregon Tort Claim Act limit on liability is constitutional as applied to Oregon Health & Science University).

§33.5-2(c) Statutory Torts That Do Not Preclude

Common-Law Remedies

The enactment of a statutory tort in an area where a common-law tort action already exists raises the question of how the legislative and common-law claims relate. Sometimes a statutory tort will expressly say that common-law tort claims are not affected. For example, Oregon's products liability statute, ORS 30.920(4), states that the statutory tort does not "limit the rights and liabilities under principles of common law negligence." In other areas the courts have interpreted the statutory tort claims as not preempting existing common-law claims. See, e.g., Davis v. Campbell, 327 Or 584, 592, 965 P2d 1017 (1998) (Oregon Residential Landlord Tenant Act does not supersede the common law of personal injury liability).

The continuing availability of a common-law claim may be important when there is a specific statute of limitation or notice of claim for the statutory claim. For example, in Waldner v. Stephens, 345 Or 526, 542—543, 200 P3d 556 (2008), the supreme court held that the usual two-year statute of limitations, ORS 12.110(1), applied to a common-law negligence claim against a landlord instead of the one-year statute of limitations, ORS 12.125, for claims under the Oregon Residential Landlord Tenant Act. Similar issues exist in other areas when both statutory and common-law tort claims coexist. For example, ORS 471.565 provides for statutory liability for alcohol providers who serve visibly intoxicated persons who have auto accidents that injure others. A notice of claim is required for statutory liability. ORS 471.565(5). The statute does not make clear whether this notice of claim would also apply to common-law claims for serving someone who is visibly intoxicated. See Chartrand v. Coos Bay Tavern, Inc., 298 Or 689, 696, 696 P2d 513 (1985) (one statutory claim and two common-law claims exist for serving a person while visibly intoxicated).

§33.5-3 Implied Statutory Tort

Occasionally, courts must recognize implied statutory torts. Courts recognize implied statutory torts when state legislation prohibits or requires certain conduct, and the legislature intends to provide a tort remedy, but does not expressly do so. See, e.g., Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983) (police officers who knowingly fail to enforce restraining order are potentially liable for resulting harm to psychic and physical health of intended beneficiaries of restraining order). Legislative intent to provide a tort remedy is determined using the methodology set...