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Shin v. Sunriver Preparatory School4/27/2005
fault" when the statute was amended in 1975.
Sunriver Prep reads the requirement in ORS 31.600 that " he trier of fact shall compare the fault of the claimant * * * with the fault of third party defendants who are liable in tort to the claimant" to include intentional tortfeasors and cites the change in language from "negligence" to "fault" in 1975 as evidence of a legislative intention to broaden the category of torts to which comparative fault principles applied. The question, then, is whether "fault," as used in ORS 31.600 and ORS 31.605, encompasses intentional torts.
Although the Supreme Court has not addressed that precise question, it has had occasion to consider the meaning of "fault" in the comparative fault statute in light of its legislative history. In Johnson v. Tilden, 278 Or 11, 18, 562 P2d 1188 (1977), the court concluded that the 1975 amendments extended comparative fault treatment to actions based on gross negligence. In doing so, the court reviewed the legislative history and found the following statement from then-Representative Frohnmayer in a memorandum to the House Judiciary Committee explaining the intent behind the language change: "'Apportionment of damages is expressly extended to all actions to recover damages for injury to persons or property in which contributory negligence may properly be asserted as a defense.'" Johnson, 278 Or at 17 (quoting Minutes, House Committee on the Judiciary, May 28, 1975, App G). From that, the Supreme Court concluded--consistently with the statute's explicit direction that " his section is not intended to create or abolish any defense" --that the 1975 amendments were intended to include not only actions based on gross negligence, but also "any other actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense." Johnson, 278 Or at 17. Accordingly, when the Supreme Court considered the 1975 amendments again in Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 595-97, 642 P2d 624 (1982), it concluded that the change in language from "negligence" to "fault" applies to actions for strict product liability, "where the defendants' 'fault' lies in putting a dangerously defective product on the market." In doing so, the court noted that prior law recognized a defense to strict products liability when the injured party had unreasonably proceeded to encounter a known danger from the product defect. Sandford, 292 Or at 597.
We return then, to the statutory interpretation question now before us. ORS 31.605(1) provides that, " hen requested by any party the trier of fact shall answer special questions indicating * * * he degree of fault of each person specified in ORS 31.600(2)." ORS 31.600(2) requires the trier of fact to "compare the fault of the claimant" with, among others, "the fault of third party defendants who are liable in tort to the claimant." Although Shin is a "third party defendant liable in tort" to plaintiff, the statute mandates only a comparison of "fault."
The Supreme Court's prior interpretation of the comparative fault statute, including the court's reading of the legislative history, guides our interpretation at the first level of textual analysis, as if written into the statute at the time of its enactment. See Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992). From it we glean that "fault" as used in the 1975 amendments--now codified at ORS 30.600 and ORS 30.605--includes "tortious conduct, however described, in which contributory negligence is an appropriate defense." Johnson, 278 Or at 17. Before the adoption of comparative fault, contributory negligence was not a defense to willful or intentional misconduct. Cook v. Kinzua Pine Mills Co.,
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