OTLA Trial Lawyer Fall 2021

52 Trial Lawyer • Fall 2021 tions because they were not signed under penalty of perjury, as required by ORCP 1 E; she reiterated that objection at the hearing and also made an oral motion to strike the declarations then. The trial court did not rule on the plaintiff’s objec- tions or oral motion, however, and granted the defendant’s motion. The Court of Appeals affirmed in a divided opinion. On the merits, the majority held the trial court did not abuse its discretion in granting the mo- tion for relief from default. The majority also rejected two procedural challenges to the trial court’s ruling. First, the major- ity held the trial court permitted the defendant to withdraw its initial motion for relief from default (which was not accompanied by a proposed answer, as required by ORCP 71) and refile the motion with an accompanying answer. Second, the majority (per Judge Arm- strong) wrote the plaintiff had failed to properly raise her challenge to the decla- rations in the trial court, because she did not file a written motion to strike, as required by ORCP 14, which states that every application for an order must be made by written motion, except at trial (which the motion hearing was not). Thus, Judge Armstrong explained, the plaintiff’s challenge to the trial court’s consideration of the declarations either was not preserved or did not constitute error. Judge Aoyagi concurred, stating the purposes of preservation were not served in this case because the plaintiff did not highlight the declaration issue enough in the trial court (it was just one of many arguments the plaintiff made in opposition to the defendant’s motion). Judge Aoyagi wrote, however, that she did not understand Judge Armstrong’s opinion to announce a bright-line rule under which, outside trial, an oral mo- tion is never sufficient to preserve an issue for appeal under ORCP 14. Judge Tookey dissented. First, he explained the plaintiff had adequately preserved her challenge to the defendant’s declarations through her objections, which are not governed by ORCP 14, and even if that rule applied, the hearing was trial-like, so no written motion was required. Second, he explained that, absent the declarations, there was no basis for setting aside the default judg- ment. The liability cap in the Oregon Tort Claims Act, ORS 30.272, applies to claims that span long periods of time, such as whistleblower retaliation. Burley v. Clackamas County , 313 Or App 287 (2021); DeHoog, J. The plain- tiff was represented by Travis Eiva. The plaintiff brought a whistle- blower retaliation claim against her em- ployer, Clackamas County, based on several years of whistleblowing activity and more than a year of retaliatory con- duct. The jury found for the plaintiff and awarded nearly $400,000 in damages. The plaintiff then sought attorney fees and post-judgment interest. The county objected that the full amount sought by the plaintiff would exceed the $666,700 liability cap in the Oregon Tort Claims Act, ORS 30.272. The court agreed, awarding the plaintiff fees up to the cap amount, and no post- judgment interest. The plaintiff appealed, arguing the cap did not require reduction of her re- quested attorney fees or interest, because her claim, arising out of conduct that occurred over a period of time, did not arise out of a “single accident or occur- rence” within the meaning of ORS 30.272. The Court of Appeals affirmed based on Dowers Farms v. Lake County , 288 Or 669 (1980), which held “accident or occurrence” in the OTCA means “the tort.” The Court of Appeals ruled the Supreme Court adhered to Dowers in Griffin v. Tri-Met , 318 Or 500 (1994), where the tort spanned a long period of time, and the Legislature has accepted the Dowers interpretation of the statu- tory terms. Recreational immunity does not arise as a matter of law based on the State’s statutory obligations for coastal areas or by the State’s failure to restrict the use of such areas. Ortega v. Martin , 313 Or App 252 (2021); Lagesen, J. The plaintiff was represented by Helen Tompkins. Kath- ryn Clarke filed an amicus brief on behalf of OTLA. The plaintiff sustained severe injuries in a collision with a dory boat while he was surfing in Pacific City. On remand from the Oregon Supreme Court, the Court of Appeals considered the state’s entitlement to recreational immunity under ORS 105.682 for the plaintiff’s injuries. Specifically, the state argued (1) its statutory obligations regarding coast- al areas are sufficient to establish, as a matter of law, that it permits recreation- al use of the shore at Pacific City and all shore lands, and (2) it permits recre- ational use as a matter of law “by tolerat- ing or declining to restrict that use.” The Court of Appeals held that neither of the state’s arguments was consistent with the recreational immunity statute. An invitee’s failure to exercise reasonable care for their own safety may be the basis of a comparative-fault defense if the invitee’s negligence relates and con- tributes to the harm or risk of harm created by the defendant’s negligence. Appleyard v. Port of Portland , 311 Or App 498 (2021); DeHoog, P.J. The plaintiff was represented by Joshua S. DeCristo. The plaintiff brought this premises- liability action against the defendant Port of Portland, seeking damages for injuries he sustained after he tripped over his own luggage and cut his foot on the edge of a baggage carousel at Portland Interna- tional Airport. The jury returned a de- fense verdict based on its finding the plaintiff was more at fault for his injury than the defendant. On appeal, the plaintiff argued because he neither knew nor had any reason to know that the base Sheets Continued from p 51