Willamette Law Online

(30 summaries)

Elin Severson

Oregon Supreme Court

TitleExcerptFilling Date
State v. Sanchez-AlfonsoEvidence: Whether evidence is sufficiently reliable to admit under OEC 702 requires an expert to explain what his or her expertise is, how the information is gathered, how the information is used in reaching his or her conclusion, and what scientific basis supports each step of that process.(11-29-2012)
State v. BurgessCriminal Procedure: The State is precluded from raising a legal theory on appeal that was not argued at the trial level because the defendant may have developed the record differently had the issue been addressed at trial.(10-11-2012)
Mead v. Legacy Health SystemTort Law: When a physician has not personally seen a patient, whether an implied physician-patient relationship is created depends on whether the physician knows or reasonably should know that he or she is diagnosing a patient’s condition or is treating the patient.(07-26-2012)
Eads v. BormanTort Law: An entity may be held vicariously liable for a physician’s negligence on the theory of apparent agency when: (1) the entity holds out the physician as an agent delivering medical services on behalf of the entity subject to oversight and control of the entity; and (2) the injured plaintiff reasonably relied on these representations, which led him to believe the entity was the provider of care.(04-26-2012)
Lasley v. Combined Transport, Inc.Tort Law: Under comparative negligence, if a defendant wants to establish that a co-defendant is responsible for more of the fault based on facts not pleaded by the plaintiff, the defendant must plead the new facts as an affirmative defense in their answer.(09-22-2011)

Oregon Court of Appeals

TitleExcerptFilling Date
Hale v. BellequeCriminal Procedure: When an element of a crime depends on the specific crime that a defendant intends to commit, at least 10 of the same jurors must concur on the underlying crime that the defendant intended to commit before the defendant can be convicted.(03-20-2013)
Endres v. DMVAdministrative Law: On judicial review of a final administrative order, the Court of Appeals reviews whether the order is supported by substantial evidence in the record.(02-13-2013)
Thomas v. Dept. of Land Conservation and DevelopmentProperty Law: Private real property that is owned by the same owner is "contiguous" for purposes of Measure 49, regardless of whether or not the lots designated for proposed development are connected by a common border. If each lot is connected by property owned by the same person, it is contiguous property.(01-16-2013)
Koller v. SchmaingAppellate Procedure: Upon filing a notice of appeal, the Court of Appeals has jurisdiction over a case and the trial court retains only limited jurisdiction, which does not include entering corrected judgments under ORCP 71C.(12-19-2012)
Johnson v. Dept. of Public Safety Standards and TrainingCriminal Procedure: ORS 135.970(2) imposes a duty solely on the defense attorney to inform a crime victim of the “identity and capacity of the person contacting the victim” and the victim’s other rights under the statute. A crime victim’s constitutional right to refuse an interview request does not include an obligation on the person seeking the interview to inform the victim of that right.(11-07-2012)
Derschon v. BellequePost-Conviction Relief: In order to prove ineffective or inadequate assistance of trial counsel at a post-conviction relief hearing, a petitioner must show that: (1) the counselor’s performance was unreasonable, and (2) the counselor’s unreasonable performance prejudiced the outcome of the trial.(09-26-2012)
State v. HaleCriminal Procedure: Determining whether a magistrate is neutral and detached requires that the magistrate: (1) be uninvolved in law enforcement, and (2) not have an interest in the case that would corrupt an average judge under similar circumstances.(09-06-2012)
Pedroso v. NoothPost-Conviction Relief: A petition for post conviction relief that is deemed meritless under ORS 138.525 and dismissed is not appealable.(08-15-2012)
State v. FauceConstitutional Law: A due process violation exists when the state fails to preserve evidence that is known to be favorable to the defendant and hard for the defendant to produce otherwise. However, if the evidence is only known to be “potentially useful” and it is speculative whether the evidence is favorable, a defendant bears the burden to prove that the state’s failure to preserve such evidence was in bad faith.(07-05-2012)
Amalgamated Transit Union, Division 757 v. Tri-MetAdministrative Law: A public employer commits a [italics]per se[/italics] unfair labor practice if it institutes a unilateral change to the status quo involving a CSI policy, but the challenger bears the burden to prove the status quo. Substantial evidence exists when a reasonable person could come to that conclusion based on the whole record. A board is authorized to take such affirmative action as necessary to remedy unfair labor practice violations. A board's decision to rescind a disciplinary action that was the result of binding arbitration based on unfair labor practice is not tantamount to rescinding the arbitration award.(06-27-2012)
Kercher v. Employment Dept.Administrative Law: Substantial evidence exists when a reasonable person could make that finding based on the entire record and substantial reason ensures that the order explains the reasoning between the facts and the conclusion.(06-13-2012)
State v. RamboEvidence: Nonscientific expert opinion evidence based on independently admissible scientific evidence is admissible, as long as the expert is established as qualified through experience and training and does not use scientific language or suggest that his conclusion was based on a scientific method or data collection.(05-31-2012)
CACV of Colorado v. StevensCivil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and would impose an unfair burden in defending against the claim, a court may apply the appropriate Oregon statute of limitation.(03-14-2012)
Barber v. GreenAttorney Fees: Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. When attorney fees to the prevailing party are mandatory, a court may determine the amount of attorney fees, but does not have discretion to not award any attorney fees.(02-29-2012)
State v. DimmickCriminal Procedure: Police inventories must be managed pursuant to a properly administered administrative program that does not involve exercise of discretion of the police. When the evidence in joined cases is sufficiently simple and distinct, jury instruction can cure any possible prejudice.(02-15-2012)
PGE v. Ebasco Services, Inc.Civil Procedure: A court may not enter a judgment awarding more damages than the plaintiff sought in its complaint, unless the party against whom the judgment will be entered had reasonable notice and an opportunity to be heard.(02-08-2012)
Alto v. City of Cannon BeachCivil Procedure: A person has statutory standing to challenge a vesting determination under section 5(3) of Measure 49 if the person: (1) owns the property that is the subject of that vesting determination or (2) timely submitted written evidence, arguments, or comments to a public entity concerning the vesting determination.(01-25-2012)
Elk Creek Management Company v. Harold GilbertLandlord Tenant: Retaliatory eviction requires the landlord to have the intention to cause disadvantage to the tenant, motivated by some sort of injury the tenant has caused the landlord. Temporal proximity of a tenant’s complaint to a landlord and subsequent eviction is not sufficient for a tenant to establish a presumption of retaliation that would shift the burden to the landlord to demonstrate the eviction was not retaliatory.(01-05-2012)
Smith v. Bend Metropolitan Park and RecreationTort Law: ORS 30.265(3) requires that a government duty must result of a decision involving public policy, exercised by a person who has the responsibility or authority to make such a decision in order to qualify for discretionary immunity.(12-14-2011)
Rodenbeck and RodenbeckFamily Law: In a marriage dissolution, it is not just and proper to reduce the value of a spouse’s share of a marital asset to reflect the taxes the other spouse may owe on the income he or she uses to pay the spouse. Also, a court should not rely on an expert’s value that is based on a guess from a non-expert.(11-09-2011)
Nordbye v. BRCP/GM EllingtonProperty Law: The right of third-party beneficiary of a covenant to enforce the covenant may not be abrogated without his or her consent. Also, a state agency's interpretation of a federal statute will not be given deference if it is not a federal agency and Congress's intent is clear on the issue.(10-26-2011)
Dept. of Human Services v. G. E.Juvenile Law: The Court of Appeals is bound by any findings of fact of a juvenile court that are supported by current evidence.(10-19-2011)
State v. Martinez-AlvarezCriminal Procedure: An officer is not required to obtain a warrant prior to administering a breath or blood test, unless an objectively reasonable officer would know that a warrant could be issued significantly faster than the time elapsed between probable cause and administration of the breath or blood test at the time the officer had probable cause.(09-08-2011)
Ferguson v. PeaceHealthAppellate Procedure: A sanction for contempt may not be appealed from until a final judgment has been entered.(08-31-2011)
State v. PipkinCriminal Law: A concurrence jury instruction is required when determining which crime a defendant is guilty of, but it is not required when determining which particular acts a defendant perpetrated to constitute an element of a single crime.(08-17-2011)