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Shin v. Sunriver Preparatory School4/27/2005
se provided in this section." ORS 31.610(2) then provides that, " n any action described in subsection (1) of this section, the court shall determine the award of damages to each claimant in accordance with the percentages of fault determined by the trier of fact under ORS 31.605 * * *." By its terms, then, the several liability requirement applies only to those parties found to be at "fault" within the meaning of ORS 31.605.
Sunriver Prep hearkens to the reasoning of other courts interpreting other statutes to support its view of the proper construction of Oregon's statute, making the policy argument that "penaliz the negligent tortfeasor" by refusing apportionment of liability with an intentional tortfeasor "not only frustrates the purpose of the statute but violates the common sense notion that a more culpable party should bear the financial burden caused by its intentional act." Weidenfeller v. Star & Garter, 2 Cal Rptr 2d 14, 16 (Cal App 1991); see also Slack v. Farmers Ins. Exchange, 5 P3d 280, 286-87 (Colo 2000). However, the legislatures in those states did not pass a comparative fault law that was "not intended to create or abolish any defense," as provided in ORS 31.600(1), nor did they pass a contribution law that directed the allocation of liability among tortfeasors according to their common "negligence," as provided in ORS 31.805(1). Those legislatures likewise did not create legislative history similar to the legislative history here.
This case concerns Oregon's comparative fault statute, not the dissimilar comparative fault statutes of other states. The legislature's choice to continue using the word "fault" in the 1995 amendments to ORS 31.600 and ORS 31.605, when Oregon courts had previously interpreted the word (particularly in Johnson and Sandford), evidences an intent to maintain the interpretation set forth in those cases. See Lindeman v. State Indus. Acc. Comm., 183 Or 245, 2554, 192 P2d 732 (1948) (where a case interpreting specific words in a statute was followed by an amendment to the statute that used the same words, it could be presumed that the legislature "intended to adopt the construction which had been placed thereon by the court" in the prior case).
In conclusion, we hold that, when the legislature changed "negligence" to "fault" in the comparative fault statutes in 1975, it intended to extend comparative fault to tortious conduct to which contributory negligence was a valid defense at common law. References to "fault" in ORS 31.600 and related statutes do not encompass intentional conduct to which contributory negligence was not a defense; apportionment of liability between negligent and intentional tortfeasors therefore is not permitted under those statutes. The trial court did not err in refusing to instruct the jury otherwise.
Affirmed.
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