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Mark Firmin

The recent decision in Miller v. Agripac, Inc., 322 Or. App. 202, 518 P.3d 957 (2022) casts serious doubt on the ability of negligent co-defendants to reduce their exposure to damages via comparative fault with reckless defendants. The impact of Miller is that reckless conduct is separate from negligent conduct for the purposes of Oregon’s comparative fault statute. When a jury is asked to allocate percentages of fault in order to divide damages, reckless defendants are not included. For negligence defendants in personal injury, products liability, or similar cases with multiple defendants, the impact of Miller it that a finding that one defendant was negligent but that another was reckless would result in no comparison of ‘fault’ to the reckless defendant: the negligent defendant could end up paying some of the reckless defendant’s share of the damages, particularly if the plaintiff is unwilling or unable to collect from the reckless defendant. 

The Rules Under Miller

Miller is a statutory interpretation case. In Oregon, the affirmative defense of comparative fault and the system of several-only liability are governed by ORS 31.600 and 31.610 respectively. ORS 31.600 establishes that factfinders must compare the fault of all parties, including “third party defendants who are liable in tort to the claimant” and ORS 31.605 mandates that the factfinder separately determine total damages and each party’s degree of fault, expressed as a percentage. ORS 31.610 abolishes joint liability in most circumstances and establishes that each party is only responsible for damages proportional to the degree of fault determined under ORS 31.600 & 31.605, regardless of the status of other defendants or their ability to pay, except as provided by that statute.

Under a plain reading of the statue, if a plaintiff (P) sues three defendants (D1, D2, and D3) for negligently causing her wrongful death, the factfinder will apportion fault for P’s injury, e.g., P = 10%, D1 = 15%, D2 = 15%, D3 = 60%, determine appropriate damages, e.g., $100,000, and then divide the damages based on the percentage: P recovers $15,000 each from D1 and D2 and $60,000 from D3.

In Miller, the plaintiffs alleged strict products liability claims against over 50 defendants based on Donald Miller’s exposure to asbestos between 1966 and 1984, leading to his eventual diagnosis of mesothelioma. At the time of trial, only one defendant remained. The rest had been dismissed for any of several reasons (bankruptcy, settlement, etc.). Plaintiffs then amended the complaint to assert reckless conduct against the remaining defendant, and then argued that damages should not be apportioned according to the statutes described above, asserting that the defendant was jointly liable for all of the plaintiff’s damages. 

On appeal, the Court of Appeals identified four categories of tortious misconduct: negligence, gross negligence, recklessness, and intentional assault and battery. Id. at 218–19 (quoting Cook v. Kinzua Pines Mill Co. et al., 207 Or. 34, 58–59, 293 P.2d 717 (1956)). The latter two, reckless and intentional, both involve intentional conduct, but only the last category involves the intent to cause harm. Whether it is called “reckless” or “wanton,” the third category includes “an intentional doing or failing to do of an act when one knows or has reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates unreasonable risk of harm to others, but also involves a high degree of probability that substantial harm will result to him.” Id. (quoting Falls v. Mortensen, 207 Or. 130, 135, 295 P.2d 182 (1956)). 

Miller goes on to determine that this “recklessness” category of tortious conduct falls outside of the statue “such that [a reckless] defendant would still be subject to common-law joint and several liability.” The crucial conclusion of the Miller court, however, is that “[b]ecause those people are simply not in the comparison group, they not only cannot rely on the defense of comparative fault themselves, but no one can look to them for apportionment under ORS 31.605.” (citing Shin v. Sunriver Preparatory School, Inc., 199 Or. App. 352, 376, 111 P.3d 762, rev. den., 339 Or. 406, 122 P.3d 64 (2005)).

Miller relies heavily on two cases: Shin v. Sunriver Prep and State v. Gutierrez-Medina, 365 Or. 79, 442 P.3d 183 (2019). Shin is the case that determined the statute did not apply to intentional torts. The key language in the statute is the use of the word “fault” throughout and the inclusion of the phrase “[t]his section is not intended to create or abolish any defense” in ORS 31.600(1). The Shin court concluded that since contributory negligence is not a defense to “willful or intentional misconduct”, then the statute does not apply in those cases. Id. Miller extended this logic to “reckless or wanton” conduct. 

Miller’s focus on Gutierrez relates to parsing of terms and confusion in definitions. At issue in Miller is an attempted distinction between “wanton” and “reckless.” Miller cited to Gutierrez—a criminal case—as reinforcement of the four categories of tortious conduct described in Cook and as an endorsement of the definition of “reckless” used by the plaintiff in Miller. Gutierrez begins by reinforcing the holding of Shin: “the statutory defense of civil comparative fault is available only to defendants who act with a degree of culpability for which the common law defense of contributory negligence would have been available” Gutierrez, 365 Or. at 83–84. The Gutierrez Court immediately notes that the defense is not available to defendants “who acted with a culpability greater than what the common law considered to be ‘gross negligence’”, which it defines as “conduct that was either ‘wanton’ or intentional” Id. at 84 (emphasis added). After some analysis, the Gutierrez Court ultimately affirms that “wanton” and “reckless” refer to the same standard: “‘Wantonness’ or ‘recklessness’. . . means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow” Id. (quoting Falls v. Mortensen, 207 Or. 130, 137, 295 P.2d 182 (1956)).

The key rule from these cases is that negligent defendants cannot look to reckless ones for apportionment under Oregon’s comparative fault statutes. The effect of this conclusion is significant and counter intuitive. Consider the example above, where P was 10% at fault, D1 and D2 each 15%, and D3 60% at fault. Under Miller, if D3 is reckless, they are simply removed from the apportionment, and the other defendants cannot “look to” D3. Under ORS 31.6015 as interpreted in Miller, P is now 25% at fault, and D1 and D2 are now each 37.5% at fault, despite D3’s higher level of culpability. While D3 is jointly liable for 100% of the injury, if D3 is judgment-proof, then D1 and D2’s damages exposure more than doubles. Miller recognizes, in a footnote, that this result has these odd “practical ramifications” Id. at 224 n.4 (noting the possibility of increase in a plaintiff’s “percentage of fault”). 

Results of Miller May Conflict with Other Statutes

The pronouncement in Miller is that “common-law joint and several liability continues to apply” to reckless defendants. Miller, 322 Or. App. at 225. Even if the rule in Miller is that the reckless tortfeasor is 100% “at fault” and the group of negligent ones are also 100% at fault, there cannot be double recovery. Plaintiff would have the option to choose to recover from either, but not from both. In Miller, for example, the trial court deducted the amounts of the pretrial settlements with the other defendants from plaintiff’s total damages, such that total recovery (settlement plus judgment against the final remaining defendant) was equal to 100% of the jury’s damages award. Miller is clear and careful to state that “[t]hose reductions were based on the actual settlement amounts . . . not any apportionment of damages between defendants.” Id. at 208.

Oregon law does allow suit for contribution from another jointly liable party, see ORS 31.800, but it is not clear how this would interact with the application of ORS 31.600 and Miller in a case with multiple allegedly negligent defendants and one or two reckless ones. Traditional joint liability protected the plaintiff’s ability to recover in full from multiple jointly liable defendants if one or some of them were judgment proof or could not be located: the rule puts the burden on the tortfeasors to litigate who is responsible for what portion.

As long as the current Miller analysis is good law, defendants in negligence claims against multiple parties will have to develop arguments distinguishing Miller or undermining Shin, as well as be creative and careful with jury instructions on comparative fault. Importantly, defense counsel should keep in mind that the issue is a matter of statutory interpretation more than anything else.