59 Trial Lawyer • Fall 2022 repetition of a drill, the coach bumped the plaintiff in the chest, threw him off balance and injured the plaintiff ’s knee. The plaintiff filed this lawsuit alleging, among other things, that the coach’s conduct unreasonably created a risk of harm to the plaintiff and further violated NCAA bylaws because the plaintiff was playing basketball elsewhere and had not been medically cleared for the drills. The trial court thereafter granted the defendants’ summary judgment on the argument that the plaintiff ’s injury arose from the inherent risk of playing basketball. The plaintiff appealed, arguing that the defendant’s argument rested on the abolished doctrine of implied assumption of risk and failed to recognize that, under Fazzolari, duty is subsumed in the inquiry of “whether the defendant's conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff.” The Court of Appeals agreed with the plaintiff and reversed the trial court’s judgment. The court concluded that the alleged conduct and foreseeable risk of harm went “beyond ordinary participation in a sports activity” and that it is for the jury to assess the reasonableness of the conduct and the foreseeability of that risk of harm. Additionally, the court determined the trial court abused its discretion in denying the plaintiff ’s ORCP 23 A motion to amend his complaint under the Supreme Court’s recent decision in Eklof, which focuses the inquiry on the futility or lack of merit of the proposed amendment and on prejudice to the opposing party. Lastly, the court concluded the trial court erred in denying the plaintiff ’s summary judgment motion against the defendants’ defense of comparative fault/contributory negligence for which the defendants had submitted no evidence. Deadline to appeal court-annexed arbitration award not affected by inaccurate certificate of service of award where appealing party had actual notice of the filing of the award. McCorquodale v. Oxford House, Inc., 320 Or App 587 (2022); Nakamoto, S.J. The plaintiff was represented by Anne Witte. The plaintiff sued the defendant for damages for unlawfully locking him out of the room he rented from the defendant, alleging violations of the Oregon Residential Landlord andTenant Act and Portland City Code. Because the amount in controversy was less than $50,000, the case was subject to mandatory court arbitration. The arbitrator decided in the plaintiff ’s favor and awarded fees and costs to the plaintiff. The arbitrator filed the arbitration award with an inaccurate certificate of service, which stated the arbitrator had served counsel for the parties by mail, when he had used email instead. Though the defendant’s counsel admitted receiving the arbitration award by email, he waited to receive a copy of the award by mail before filing a notice of appeal to the trial court and then filed the notice more than 20 days after the arbitrator had filed the award. The plaintiff moved for entry of judgment, arguing the notice was untimely under ORS 36.425, which requires a notice of appeal to be filed within 20 days after the “filing” of the arbitrator’s decision, and that the decision be filed “with proof of service” of the decision. The trial court denied the plaintiff ’s motion, enlarged the defendant’s time to file the notice of appeal under ORCP 15 D and permitted the defendant to appeal the award. The defendant prevailed on the appeal to the trial court. The plaintiff appealed to the Court of Appeals, which reversed. The Court of Appeals concluded the trial court erred in its determination that the defendant’s notice of appeal was timely, because even an inaccurate certificate of service suffices to start the 20-day clock running, so long as the party seeking to appeal receives actual notice of the filing of the See Sheets 60
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