17 Trial Lawyer • Fall 2022 contributory negligence to prevent recovery by a negligent plaintiff. Id. In cases where vulnerable road users are injured by dangerous or deadly weapons (e.g., automobiles) used in a way the driver is aware will create a substantial risk of serious physical injury, and the driver consciously disregards that risk, then that driver has necessarily acted “wantonly.” Crafting your claims accordingly will put your vulnerable road user clients in a much better position for a better recovery where there is both a negligent tortfeasor who bears some responsibility for causing the injury or death of your client and a wanton tortfeasor who clearly is responsible. The result After years of zero movement in settlement discussions, the complaint our firm filed on behalf of our three clients against defendant Dr. Ashley were resolved at mediation several weeks before trial was to begin. Defendant Downing agreed to a stipulated money judgment against her in favor of our three clients in return for not seeking to collect on the judgment until she is released from prison. Chris Larsen specializes in personal injury cases involving vulnerable users of the road and police brutality. Larsen is Of Counsel in the law firm Pickett Dummigan McCall, Fourth Floor, 210 SW Morrison St., Portland, OR 97204. He contributes to the OTLA Guardians of Civil Justice at the Sustaining Member Level. Larsen can be reached at chris@pdm.legal or 503-2237770. 1 In 1971, the Oregon Legislature abandoned contributory negligence and adopted the statutory defense now called “comparative fault,” allowing some plaintiffs whose claims previously would have been barred under the defense of contributory negligence to now recover a proportionate share of their damages under a comparative fault analysis. Towe v. Sacagawea, Inc. 357 Or 74 (2015). 2 The court has held that the terms “reckless” and “wanton” are synonymous for comparativefault purposes.
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