OTLA Trial Lawyer Fall 2021

53 Trial Lawyer • Fall 2021 of the baggage carousel had a danger- ously sharp edge, no fault could be at- tributed to him for the injury he suffered from that condition. In other words, the plaintiff argued comparative fault prin- ciples do not apply where a business in- vitee neither knew nor had reason to know of the allegedly dangerous condi- tion. The Court of Appeals held an invitee’s failure to exercise reasonable care for his or her own safety may be the basis of a comparative-fault defense if the invitee’s negligence relates and contributes to the harm or risk of harm created by the de- fendant’s negligence. In those circum- stances, whether the plaintiff knew or could have known that an alleged danger- ous condition was on the premises is not determinative. Certain provisions of Oregon’s Unfair Trade Practice Act, including ORS 646.608(1)(b) and ORS 646.608(1)(e), implicitly require proof of materiality to consumer purchasing decisions. State ex rel. Rosenblum v. Living Es- sentials , LLC, 313 Or App 176 (2021); DeVore, J. The state was represented by Carson Whitehead. The state initiated this action under Oregon’s Unlawful Trade Practices Act (UTPA), ORS 646.605 to 646.656, al- leging the defendant manufacturers and sellers of 5-Hour Energy® (5-Hour En- ergy) energy drinks had engaged in a variety of unlawful practices in the ad- vertising of 5-Hour Energy. After a bench trial, the trial court entered judgment for the defendants on all counts. On appeal, the state argued, among other things, the trial court erred in in- terpreting ORS 646.608(1)(b) and ORS 646.608(1)(e) to require proof that the defendants’ alleged unlawful trade prac- tices were “material to consumer purchas- ing decisions.” On cross-appeal, the de- fendants argued the trial court erred in denying their attorney-fee petition under ORS 646.632(8), because they prevailed at trial and had submitted a satisfactory assurance of voluntary compliance prior to institution of the action. The Court of Appeals held the trial court was correct in concluding that ORS 646.608(1)(b) and (e) implicitly require proof of materiality to consumer purchasing decisions. In reaching the conc lus ion wi th respect to ORS 646.608(1)(b), the court noted if a seller’s allegedly unlawful practice were immate- rial to the consumer’s purchasing deci- sions, it would be unlikely to cause the likelihood of confusion or misunder- standing that the statute requires. With respect to ORS 646.608(1)(e), the court concluded, based on the statute’s legisla- tive history, the Legislature had intended a similar materiality requirement to be implicit in the subsections drawn from the Uniform Deceptive Trade Practices Act, which includes ORS 646.608(1)(e). Finally, the court noted a contrary con- clusion may run afoul Article I, section 8, of the Oregon Constitution. On the defendants’ cross-appeal, the Court of Appeals reversed and remanded, holding the assurance of voluntary compliance was satisfactory under Oregon law. A trial court errs by failing to instruct that an employer’s duty under the Em- ployment Liability Law is nondelegable, even where the employer’s primary de- fense is that it is not subject to the ELL. Yeatts v. Polygon Northwest Co. , 313 Or App 220 (2021); DeVore, P.J. The plaintiff was represented by Randy Pick- ett. The plaintiff appealed from a judg- ment dismissing an action in which he alleged liability against the defendant for personal injuries under the Employment Liability Law (ELL), ORS 654.305 to 654.336. The trial court had refused to instruct the jury that an employer’s duty under the ELL is nondelegable, which is a correct statement of law under Uniform Civil Jury Instruction 55.15. Although the trial court agreed it was a correct statement of law, the trial court declined to give the instruction for fear the jury would be confused in light of the defen- dant’s primary defense, which was that it should not be subject to the ELL at all. The Court of Appeals reversed and remanded. The court agreed the instruc- tion correctly stated the law, was sup- ported by the pleadings and evidence, was not unduly cumulative and would have avoided confusion. The court held the trial court’s failure to give the instruc- tion was prejudicial and required reversal. When a court, following entry of final judgment after court-annexed arbitra- tion, denies a defendant’s request for costs under ORCP 54 E (offer of judg- ment), that order is appealable even though the defendant did not appeal the merits of the arbitration award. Mendoza v. Xtreme Truck Sales , LLC, 314 Or App 87 (2021); Landau, J. The plaintiff was represented by John Gear. Cody Hoesly specializes in appeals, finan- cial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-222- 4424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is an attorney at Sugerman Law Office, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermanlawoffice.com or 503- 228-6474.