LANDAU , J. Defendant Capitol Specialty Insurance Co. has moved to dismiss this appeal on the ground that it has become moot. According to Capitol, the issues to be decided in the appeal pertain to the terms of an agreement settling an underlying construction defect case, but those very terms have been superseded by amendments to the agreement adopted during the pendency of the appeal. We conclude that, because the amendments to the settlement agreement do not have the effect of...
BREWER , J. The issue on review in this case is whether an anticipatory release 1 of a ski area operator's liability for its own negligence in a ski pass agreement is enforceable in the face of an assertion that the release violates public policy and is unconscionable. Plaintiff suffered serious injuries while snowboarding over a jump in defendant ski area operator's "terrain park," and brought this action alleging that defendant was negligent in the design, construction, maintenance, and...
WALTERS , J. Oregon law requires that "[i]n civil cases three-fourths of the jury may render a verdict." Article VII (Amended), section 5(7), of the Oregon Constitution; ORCP 59 G(2). In this negligence case, defendant admitted liability, and a jury of twelve was asked to decide the issues of causation and damages. The jury completed a special verdict form and unanimously agreed that defendant had caused damage to plaintiff. At least three-fourths of the jurors ( i.e., nine of twelve)...
BREWER , J. Plaintiffs had been firefighters for the city of Portland when they suffered disabling injuries. The charter for the city requires it to provide disability benefits to its police and fire employees who suffer injuries in the course of their employment that render them "unable to perform [their] required duties," with a minimum disability benefit of 25 percent of the employee's base pay, "regardless of the amount of wages earned in other employment." The city originally...
BALMER , C.J. At issue in this case is an order of the Public Utility Commission (PUC) that addressed Portland General Electric's (PGE) recovery of its capital investment in the Trojan nuclear generating facility after that facility was retired from service. In that order, the PUC made three key decisions that are now before this court. First, to determine whether a legal error that the PUC had made in an earlier rate case had affected rates that the PUC had authorized PGE to charge, the...
BREWER, J. The issues presented in this case are whether ORS 243.303(2), 1 which requires local governments to make available to retired employees, "insofar as and to the extent possible," the health care insurance coverage available to current officers and employees of the local government, creates a private right of action 2 for the enforcement of that duty; or, if not, whether this court should — under its common-law authority — provide such a right of action. The Court of Appeals held...
KISTLER, J. Plaintiff worked for a lumber mill, Sun Studs, LLC. One evening while he was walking from one area of the mill to another, a forklift hit and severely injured him. After receiving workers' compensation benefits, plaintiff brought this action against Swanson Group, Inc., which owns Sun Studs, as well as other defendants. Plaintiff alleged that Swanson was liable for negligently failing (or for negligently failing to require Sun Studs) to provide a safe workplace and for failing to...
LINDER, J. This is a direct appeal from a decision of the Oregon Tax Court Regular Division (the Tax Court) setting aside an Opinion and Order issued by the Director of the Department of Revenue (the department). ORS 305.445. The chief issue on appeal is whether either Comcast's cable television service or internet access service qualifies as "communication" under ORS 308.515(1)(h) and is, therefore, subject to central assessment by the department pursuant to ORS 308.505 to ORS 308.665. Under...
LANDAU , J. In these consolidated property tax appeals, taxpayers challenged the valuation of their real property by the Clackamas County Assessor. In their appeals to the Magistrate Division of the Tax Court, they challenged only the valuation of the improvements on their land, not the valuation of the land itself. The Magistrate Division affirmed. Taxpayers then appealed to the Regular Division of the Tax Court, again challenging only the valuation of their improvements. In the meantime,...
KISTLER, J. Plaintiff Sea River and defendant Parks own adjoining parcels of land on the central Oregon coast near Nedonna Beach just south of the Nehalem River. Between the 1920s and the 1990s, after the United States government built two jetties to contain the Nehalem River, the ocean and wind deposited sand and silt onto the upland, creating approximately 40 acres of land west of those lots and south of the Nehalem River's southern jetty. 1 The primary issue in this case is who owns those...
BREWER, J. A jury found defendant guilty of murder. The Court of Appeals reversed defendant's conviction and remanded the case based on its conclusion that the trial court had erroneously admitted eyewitness testimony of two witnesses who identified defendant as the perpetrator. On review, we conclude that the trial court properly admitted the challenged identification testimony of one of the witnesses. We also conclude that any error in admitting the identification testimony of the other...
LANDAU, J. This case is before the court on automatic and direct review of defendant's judgment of conviction and sentence of death for aggravated murder. ORS 138.012(1). On review, defendant challenges 22 rulings the trial court made during the guilt and penalty phases of his trial. He asks this court to reverse his convictions for aggravated murder and felon in possession of a firearm and remand for a new trial or, alternatively, to vacate his sentence of death and remand for resentencing....
WALTERS, J. This case requires us to interpret a provision of the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680. ORS 138.580 requires that a petitioner seeking relief under that act attach to the petition "[a]ffidavits, records or other documentary evidence supporting the allegations of the petition * * *." We conclude that that statute requires a petitioner to attach materials, including the petitioner's own averments of fact, that address each element of each asserted ground for...
KISTLER, J. In this consolidated ballot title case, three sets of petitioners have asked us to review the ballot title for Initiative Petition 58 (2014). See ORS 250.085(2) (specifying who may petition for review of certified ballot titles). 1 We review ballot titles for substantial compliance with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification. Initiative Petition 58 (IP...
BALDWIN, J. The juvenile court took jurisdiction over youth for conduct that, if committed by an adult, would constitute possession of a firearm in a public building, ORS 166.370; unlawful possession of a firearm, ORS 166.250; unlawful use of a weapon, ORS 166.220; and menacing, ORS 163.190. The question presented on review is whether the school-safety exception to the warrant requirement announced in State ex rel. Juv. Dept. v. M.A.D., 348 Or. 381 , 233 P.3d 437 (2010), permitted a...
LANDAU, J. In this original proceeding in mandamus, relator Davis Wright Tremaine LLP ("DWT") challenges a trial court order compelling production of certain materials that, in DWT's view, are protected under the attorney-client privilege codified at OEC 503. The trial court issued the order in the context of a legal malpractice action against DWT by a former client. The materials that are the subject of the order are communications between DWT's designated in-house counsel and the lawyers in...
BALDWIN, J. In this original proceeding, relator (petitioner), who is the petitioner in the underlying post-conviction case, seeks a writ of mandamus to compel the Marion County Circuit Court judge presiding over this case (the post-conviction court) to issue a protective order with respect to documents and communications subject to the lawyer-client privilege. Petitioner's proposed protective order seeks to prevent adverse party (the state), who is the superintendent of the Oregon State...
BALDWIN, J. This is the second of two cases that this court decides today regarding the interpretation and application of OEC 503(4)(c), the breach-of-duty exception to the lawyer-client privilege, OEC 503(2). In Longo v. Premo, 355 Or. 525 , 326 P.3d 1152 (2014), we construed OEC 503(4)(c) to be a limited exception permitting disclosures of confidential information only as necessary for a lawyer to defend against allegations of breach of duty, and we directed the issuance of a peremptory...
BREWER, J. Plaintiffs, the owners of real property in Linn County, brought an inverse condemnation action against the Oregon Department of Transportation (ODOT). Plaintiffs alleged in their complaint and undertook to prove at trial that ODOT, by repeatedly making representations to others about its intention to landlock their property and initiate a condemnation action, created a nuisance that "blighted" plaintiffs' property, resulting in a compensable taking of the property under Article I,...
BALDWIN, J. In a judicial review of an order of the Oregon Department of Fish and Wildlife (ODFW), the Court of Appeals rejected petitioners' contention that ODFW's approval of "channel-spanning fishways" associated with two small, privately maintained dams downstream from their property violated state law, including ODFW's own rules, pertaining to fish passage for native migratory fish. Petitioners had argued that the approvals were inconsistent with administrative rules and statutes that, in...
