Willamette Law Online

(45 summaries)

Erin Milos

Oregon Supreme Court

TitleExcerptFilling Date
Oregon Occupational Safety & Health Division v. CBI Services, Inc.Administrative Law: Under ORS 654.086(2), “could not . . . know” is an inexact term given its ordinary meaning of what an employer is capable of knowing under the circumstances, and the interpretation of “reasonable diligence” is delegated to the agency to be determined considering the circumstances of each case and within the range discretion allowed by statute.(12-26-2014)
State v. McAnultyCriminal Procedure: Statements improperly obtained and used during sentencing were in violation of Defendant’s rights, but were harmless where statements subsequently obtained and admitted were more serious. The jury would have found the improperly admitted statements duplicative or unhelpful.(10-30-2014)
PIH Beaverton, LLC v. Super One, Inc.Civil Law: Posting and filing a completion notice pursuant to ORS 87.045 does not necessarily establish that the owner has accepted construction of the improvement as complete for occupation as required by ORS 12.135, but will be considered along with evidence that must demonstrate written consent or assent to construction as sufficiently complete for its intended use or occupancy; ORS 12.135 will only be satisfied by establishing the date on which the construction was fully complete, not the date on which it was sufficiently complete for its intended use or occupancy.(04-24-2014)

Oregon Court of Appeals

TitleExcerptFilling Date
Bernard v. S.B., Inc.Contract Law: Under ORS 653.295(1)(a)(A), a noncompetition agreement that is not presented to an employee at least two weeks prior to the start of employment is voidable, and may be enforced by a court unless a party takes steps to void the agreement.(05-06-2015)
Murphy v. Oregon Medical BoardAdministrative Law: Petitioner was not given adequate notice of the allegations against him when the complaint failed to specify which specific part of the statute the board alleged he violated. Petitioner was prejudiced when the board based its final order on two theories not argued at the contested case hearing.(04-29-2015)
State v. G. A. K.Civil Commitment: Evidence was insufficient to support involuntary commitment where the State failed to prove by clear and convincing evidence that appellant was unable to provide for her basic needs due to a mental disorder.(04-29-2015)
Hinchman v. UC Market, LLCCivil Procedure: Where a party’s theory is susceptible to proof through expert opinion evidence based on appropriate facts, a party’s offer of an ORCP 47 E affidavit is sufficient to create a genuine issue of fact to defeat summary judgment.(04-22-2015)
Turner v. Dept. of TransportationTort Law: Under the Oregon Tort Claims Act, the two-year statute of limitations may not begin to run until a plaintiff reasonably knows both that the governmental conduct caused harm and that the conduct was negligent or intentionally harmful. Under ORS 30.265(6)(c), governmental immunity applies only where a body or person that has responsibility or authority to exercise judgment over a public policy decision actually demonstrates that it took the action necessary to effectuate the decision, not merely weighs the costs and benefits.(04-15-2015)
State v. HuntCriminal Law: Under ORS 163.670(1), “permits” means “allows” or “makes possible” and does not require an authority to forbid. True vouching testimony supplants the jury’s assessment of credibility, requiring the court to sua sponte strike the testimony. (04-01-2015)
De Zafra v. Farmers Insurance CompanyInsurance Law: Under ORS 742.504, an insurer must “pay all sums that the insured . . . is legally entitled to recover . . . from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of an uninsured vehicle,” which does not restrict a claimant to coverage for injury caused only directly by the use of a motor vehicle.(03-25-2015)
Becker v. Hoodoo Ski Bowl Developers, Inc.Contract Law: Release of liability provisions may render contracts unconscionable where the factors, outlined in Bagley v. Mt. Bachelor, Inc., (favoring enforcement of the release) are outweighed by relevant countervailing considerations.(03-18-2015)
State v. RasconEvidence: ORS 136.420 and OEC 403 do not preclude admission of videotaped out-of-court statements or testimony where the declarant testifies and is subject to cross-examination, satisfying the requirements of Article I, section 11, of the Oregon Constitution.(03-18-2015)
State v. HodgesCriminal Law: Under ORS 165.800(1), the state must prove Defendant obtained, transferred, created, uttered or converted to his own use the personal identification of another person with the intent to deceive or defraud, and may use circumstantial evidence and reasonable inference to do so. (03-11-2015)
State v. HinerCriminal Law: When proving a sex offender failed to report, under former ORS 181.599(1)(d), the state must prove that a sex offender both left a previous residence and completed a move into a new residence while failing to comply with reporting requirements. The 2009 amendment to this statute (currently numbered ORS 181.812(1)(d)) requires the state to prove only that the sex offender moved from a previous residence and failed to comply with reporting requirements.(03-04-2015)
WSB Investment, LLC v. Pronghorn Development Company, LLCCorporations: Under ORS 65.369(1), gross negligence or intentional misconduct must be shown to hold a defendant nonprofit director liable for any breach of fiduciary duty under ORS 65.357(1). Summary judgment may be avoided in cases where breach of the statutory duty of loyalty is shown by a violation of duties contained in the declaration and bylaws of a homeowners association.(02-25-2015)
Steel Capital Steel, LLC v. WilliamsCivil Procedure: Under ORCP 26 A, a court must allow a reasonable time for the substitution of a real party in interest once the objection has been raised. The denial of an ORCP 71 B motion may not be considered on appeal unless a new or amended notice of appeal is filed, where a party received a general judgment, filed an ORCP 71 B motion for relief, filed a notice of appeal of the general judgment, and the ORCP 71 B motion was denied. (02-11-2015)
State v. SotoCriminal Law: Under ORS 138.050(1), a Defendant may not appeal an imposition of fines and fees for DUII within the statutorily allowable amount where the trial court misunderstood the law with respect to its discretion to reduce or waive some of the fees.(02-04-2015)
State v. J.M.M.Criminal Law: Mere presence during the planning and commission of a crime, or acquiescence alone, is insufficient to find a defendant guilty of aiding and abetting a crime under ORS 161.155(2)(b).(01-28-2015)
State ex rel Stewart v. City of SalemAttorney Fees: Under ORS 34.210(2), a trial court has discretion to award attorney fees to a “prevailing party” and may consider the entirety of the circumstances of the litigation when determining whether to award attorney fees on remand. Additionally, the trial court has discretion to determine the reasonableness of a party’s legal position under ORS 20.075(1)(b) and may consider the totality of the circumstances of litigation under ORS 20.075(1)(e) prior to awarding attorney fees on remand.(01-22-2015)
State v. Camacho-GarciaSentencing: Under Article I, section 16, of the Oregon Constitution, a defendant’s sentence of 75 months under ORS 137.700(2)(a)(P) for repeated, skin-to-skin sexual touching of his live-in girlfriend’s daughter under 14 years of age was not disproportionate, evaluated using the three Rodriguez/Buck factors to find the sentence would not shock the moral sense of a reasonable person.(12-31-2014)
Copeland Sand & Gravel, Inc. v. Estate of Angeline DillardContract Law: Where there is a dispute over the meaning of a mineral reservation contained in a deed, the term must be analyzed using the three Yogman factors. (12-24-2014)
Liberty Oaks Homeowners Assn. v. Liberty Oaks, LLCStanding: In a construction defect claim, the subcontractors were not liable as a third party respondent under ORCP 22 C, where the subcontractors’ liability was contingent upon the developers’ liability to the plaintiff.(12-03-2014)
Sherwood Park Business Center, LLC v. TaggartAttorney Fees: Under ORS 20.083 and 20.096, where a losing party is a stranger to an agreement that contains an attorney fee provision, the losing party shall not be subject to an assessment of fees against it even where it asserts a reciprocal right to fees. A party’s conduct that is merely an attempt to extract himself from litigation post-bankruptcy and that is not voluntary affirmative action shall not subject him to assessment of attorney fees against him for further litigation regarding the discharged debts.(11-26-2014)
State v. EnyeartCriminal Law: Defendant could not be convicted of interfering with a peace office as a lesser-included offense of eluding a police officer because the intentional mental state of ORS 162.247(1)(b) is not subsumed in the knowing mental state of ORS 811.540(1)(b)(A) and the charging instrument did not expressly allege that Defendant had intentionally refused to obey a lawful order.(11-13-2014)
Triangle Holdings, II, LLC v. Stewart Title Guaranty CompanyInsurance Law: Under ORS 742.061(1), an insured has not obtained “recovery” against an insurer where the insured accepted payment by the insurer and summary judgment was granted. “Recovery” is obtained by an insured only when a money judgment is granted against the insurer.(10-22-2014)
Horizon Air Industries, Inc. v. Davis-WarrenWorkers Compensation: Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.(10-15-2014)
Horizon Air Industries, Inc. v. Davis-Warren Workers Compensation: Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.(10-15-2014)
State v. CarleEvidence: Because the sender of a text message has no reasonable expectation of privacy in the digital copy of a text message delivered to a recipient’s cell phone, a “search” of the sender does not occur under Article I, section 9, or the Fourth Amendment, where police discovered a text message from Defendant on a recipient’s cell phone.(10-08-2014)
Norris v. R & T Manufacturing, LLCCorporations: Under ORS 95.230(1)(a), a transfer of all business assets to a newly formed company is fraudulent when the transfer is made for the purpose of avoiding payment of a judgment, where the new company conducted business nearly identical to the old company, and no other reason existed for transferring assets other than to avoid paying the judgment.(10-01-2014)
State v. CookCriminal Law: ORS 164.235(1) requires both possession and intent to use a burglary tool to commit or facilitate a forcible entry or theft by physical taking. The intent element cannot be proven merely by proving the possession element.(09-17-2014)
State v. Bennett - McCall Evidence: Automobile and officer safety exceptions applied to searches incident to an arrest for the sale of drugs where, with probable cause, officers searched defendants’ vehicle and a backpack found within; neither exception applied to a later search of the same backpack where defendants posed no immediate threat to officer safety and officers were in control of defendant’s backpack.(09-10-2014)
Broadway Cab LLC v. Employment DepartmentTax Law: Unemployment taxes are properly assessed for employee taxicab drivers who receive remuneration for services provided to benefit their employer, where the taxicab drivers do not qualify as independent contractors under ORS 670.600(3).(09-04-2014)
Regency Centers, L.P. v. Washington CountyLand Use: A Washington County Traffic Control Master Plan allowed, but did not require, the County to leave a traffic signal in place at the intersection of Tualatin Sherwood Road and Petitioners' driveways. The final order of the Land Use Board of Appeals properly held jurisdiction over the decision, and did not err in substance under ORS 197.850(9)(a) in remanding the decision to the County to determine whether the traffic signal must be left in place.(08-20-2014)
R & R Tree and Landscape, Inc. v. DCBSAdministrative Law: In order for payroll records to be "verifiable" under OAR 836-042-0060(1), the records must include a description of the duties performed by the employee without the need for additional explanation or interpretation and must be supported by original entries from other records prepared by the employee or the employee's direct manager or supervisor.(08-06-2014)
State v. EastonCriminal Procedure: A police officer may take reasonable steps to protect herself or others, including conducting a warrantless search or seizure, "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present"; the state bears the burden of establishing that, based on the totality of the circumstance at the time, "the officer subjectively believed that a defendant posed an immediate threat of serious physical injury and that the officer's belief was objectively reasonable."(07-23-2014)
State v. GoodenoughCriminal Law: For offenses committed after January 1, 2009, defendants' eligibility for AIPs must be analyzed under ORS 137.751(1) rather than ORS 137.750(1), the former statute used for AIP eligibility analysis.(07-09-2014)
State v. LangeCriminal Law: When an officer ordered defendant out of a restroom, that constituted a stop because a reasonable person in defendant's position would have believed that his freedom of movement was intentionally restricted. (07-02-2014)
Union Lumber Co. v. MillerAlternative Dispute Resolution: Failure by an arbitrator and opposing counsel to serve documents related to arbitration and judgment as required by law are mistakes that require a court to set aside a judgment under ORCP 71B. (06-18-2014)
State v. VerardoEvidence: When a defendant proffers exculpatory hearsay statements for the truth of the matter asserted during his case-in-chief, defendant is subject to impeachment under OEC 806, even where the State had offered the statements in the first instance as statements of a party opponent under OEC 801(4)(b)(A).(06-11-2014)
Amerivest Financial, LLC v. MaloufCorporations: When the expected profits of investment transactions are the result of management and control by a company’s own officers, the investment transactions are not “investment contracts” for the purposes of securities fraud under ORS 59.137.(06-04-2014)
State v. EllisCriminal Law: The speedy trial delay period is measured from the date of the most recent accusatory instrument where prior accusatory instruments were dismissed, even when a new accusatory instrument is issued before the previous one is dismissed. This is measured from the initial filing date of the original instrument when that instrument was amended but not dismissed. A net delay of approximately 12 months due to insufficiency of judges is not unreasonable.(05-29-2014)
State v. BeasleyCriminal Law: An individual is not “stopped” when an officer engages in “mere conversation” with the individual absent an explicit or implicit show of authority that objectively restricts the individual’s liberty; an individual is not “seized” when an officer requests and checks the individual’s identification with the consent of the individual, and retains the identification for a reasonable period of time to examine it.(05-21-2014)
State v. WilcherCriminal Law: A defendant’s right to be heard “by himself” is fully exercised by testifying under oath as a witness, and does not include the right to make an unsworn statement to the jury during the case-in-chief.(05-14-2014)
IAFF, Local 3564 v. City of Grants PassLabor Law: Passage of the PECBA, which permits employees to bargain collectively with their public employers, did not nullify the ORS 652.080 mandate that firefighters’ authorized vacation or sick leave time shall be considered as time on regular duty for the purpose of calculating overtime entitlement.(05-07-2014)
C.J.L. v. LangfordCivil Stalking Protective Order: In order for an Stalking Protective Order to be issued, under ORS 30.866, a petitioner must show that speech-based contacts instill a fear of imminent and serious personal violence from the speaker, are unequivocal, and are objectively likely to be followed by unlawful acts, such that the addressee believes the actor intends and is able to carry them out. Threats that are hyperbole, rhetorical excesses, and impotent expressions of anger or frustration are insufficient, even if they alarm the addressee.(04-23-2014)