Chapter § 5.8

• Jurisdiction: Oregon

§ 5.8 REMEDY CLAUSE AND STATUTORY TORTS

The Oregon Supreme Court had recognized "statutory torts" in several circumstances. See, e.g., Scovill by & through Hubbard v. City of Astoria, 324 Or 159, 172-73, 921 P2d 1312 (1996); Humphers v. First Interstate Bank of Oregon, 298 Or 706, 720-21, 696 P2d 527 (1985); Chartrand v. Coos Bay Tavern, Inc., 298 Or 689, 695-96, 696 P2d 513 (1985), overruled in part by Deckard v. Bunch, 358 Or 754, 787-89, 370 P3d 478 (2016); Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983). But see Caroline Forrell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What's the Difference? 77 Or L Rev 497 (1998). Likewise, the violation of a statute can provide evidence of a breach of a duty in a common-law negligence action, based on principles of negligence per se. See McAlpine v. Multnomah County, 131 Or App 136, 144, 883 P2d 869 (1994), rev den, 320 Or 507 (1995).

As explained in § 5.3 to § 5.5-3, Horton and Busch provide several guideposts as to the types of claims that will receive Remedy Clause protections. See Busch, 366 Or 628; Horton, 359 Or at 175-76. "[C]ommon-law causes of action and remedies provide a baseline for measuring the extent to which subsequent legislation conforms to the basic principles of the remedy clause." Busch, 366 Or at 650. One would assume that a negligence per se claim would enjoy Remedy Clause protections because it simply is a type...