Oregon Personal Injury Lawyer Blog

Recently, the Ninth Circuit Court of Appeals resolved an important question in an Oregon case under the Family Medical Leave Act (FMLA). In Diane Sanders v. City of Newport, the city refused to reinstate Ms. Sanders after her doctors said she was fit for duty following her medical leave. Later, the city fired her, claiming that they could not guarantee a workplace that would not trigger her medical reaction to chemical sensitivities. The question was, Who had the burden of proof? Must the employee prove that the employer had no good reason to keep her off work? Or is the burden of proof on the employer to prove a lawful reason to avoid reinstatement after medical leave?

Ms. Sanders alleged discrimination and interference with her rights under FMLA and under Oregon's Family Leave Act. The trial judge instructed the jury that the worker must prove that the employer, without reasonable cause, did not put her back to work.

The Ninth Circuit held that the employee did not have to prove what was in the mind of the employer. Instead, all the employee needed to prove was (1) she qualified for FMLA rights, (2) she was entitled to leave, (3) she followed the rules for reinstatement, and (4) the employer did not provide the FMLA rights. If the employer has a legally-sufficient reason to avoid reinstating the employee, then the EMPLOYER has the burden to prove its good reason.

This was not my case, so I cannot comment on the City of Newport. However, there are some employers who just do not want to deal with employees with medical conditions, especially if they involve workers' compensation claims. Often employers will never reemploy the workers and come up with some bogus reason, or pretext, for not reemploying the worker. The Ninth Circuit got it right. If the employer has some good reason to fire a worker after she had a medical condition, then the employer should prove it.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, Oregon's Court of Appeals held that Oregon's constitutional protection of free speech prohibits Tri-Met from excluding advertisements based upon issue or political content. In Karuk Tribe and Friends of the River Foundation v Tri-County Metropolitan Transportation Dist., the tribe and the Friends, wanted to post an ad with a graphic showing salmon confronting an impenetrable dam of wall sockets with the tagline, "Salmon shouldn't run up your electrical bill. They should run up the Klamath River."

Tri-Met turned down the business. Tri-Met cited its policy against advertisements containing political campaign speech. Under the policy, one can buy ads to sell stuff, but not to sell ideas.

In court, Tri-Met said it was acting like a business, not in a governmental capacity, so Oregon's Constitution should not apply to it. (Tri-Met also argued that the Tribe should not be able to sue for personal speech rights.) The trial court said, "no." It held that the policy violated Oregon's Constitution and the First Amendment to the U.S. Constitution.

Oregon's Court of Appeals avoided the First Amendment. Oregon's Article I, section 8 prohibits the government from deciding what content is okay, even when acting in a proprietary capacity, it held. There are historic exceptions to that rule. For example, fraudulent speech or assistance in criminal activity. But the exceptions do not include issue ads linking dams, power, rates and salmon.

Perhaps the biggest consequence of this decision is that political candidates can now buy Tri-Met ads on bus lines in their districts.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, the Oregon Supreme Court ruled that homeowners may sue the contractor who built their home for negligence; they did not need to rely only on a breach of contract claim. In Abraham v. T. Henry Construction, the distinction was important because, by the time the homeowners discovered the construction defects, the time had expired for a breach of contract lawsuit.

Generally, when someone breaches a contract, it does not matter whether the breach is intentional or negligent. If you do not live up to your bargain, then you must pay the other person for the monetary loss caused by your breach. Often, the person hurt by the breach may only sue for breach of contract, but there are exceptions.

The first exception is when a "special relationship" exists between the parties. The lawyer-client relationship, for example is considered a special relationship of trust. That's why a client may sue his or her attorney for legal malpractice, not just breach of contract. Other special relationships include those between people and their doctors, architects, engineers, and trustees.

Another exception to the general rule that one may sue the other side of a contract only for breach of contract is when there is some standard of care or conduct independent of the contract. Here, Mr. and Mrs. Abraham alleged that both (1) common law negligence established an independent duty of care and (2) Oregon's building code sets a standard independent from the contract. They alleged that the contractor failed to meet either standard, and that failure caused water damage to their house. Oregon's Court of Appeals relied on the building code to find an independent standard to support a negligence claim.

Oregon's Supreme Court agreed that Mr. and Mrs. Abraham could sue in negligence, but not just because of the building code. The court reminded us that when a builder's negligence causes property damage, then even people who did not contract with the builder may sue. Just because you hired the builder does not mean you lose your right to sue for negligence. The homeowner might have both a claim for breach of contract and for negligence.

When applying the law to the facts in this case, the court said the homeowners could proceed with their negligence suit under the general common law claim that their contractor failed to exercise reasonable care to avoid foreseeable property damage.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

RTT News reported that Courtney Love agreed to pay a fashion designer $430,000 to settle a defamation lawsuit. The lawsuit arose out of a tweet slamming Dawn Simorangkir, the designer of Boudoir Queen, which went something like this:

"drug-pushing prostitute with a history of assault and battery who lost custody of her own child," and "she has received a VAST amount of money from me over 40,000 dollars and I do not make people famous and get raped TOO!"

In Oregon, to win a defamation lawsuit, one must show that the statement is false, tends to diminish a person's reputation, is published to someone other than the person. The statement must also cause hurt the person, that is, it must cause monetary "damage." However, there are certain statements that are "defamatory per se." That means if any of the following apply, then the element of "damages" is presumed:

• Crime involving moral turpitude.
• States that the person has a "loathsome disease."
• Implies a lack of fitness or integrity in the person's job duties; or
• Prejudices the person in their profession.

In Oregon, even if the speaker honestly believes what she said is true, that is not defense. However, a different rule applies when talking about a public figure. Then, an honest mistake is a defense.

If the case happened in Oregon, and if the tweet were false, then Courtney Love's tweet looks like it was defamatory "per se" on two scores: (1) calling Ms. Simorangkir a prostitute (crime involving moral turpitude) and (2) prejudicing her in her profession as a designer. When Ms. Love adds in the thousands of dollars she had to pay her own attorney to defend the lawsuit, this tweet shows that free speech can be quite costly.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, Oregon's Court of Appeals affirmed a jury award against the City of Milwaukie, which inadvertently pumped sewage into a home when it was cleaning the sewer pipes. In Sharon Dunn v. City of Milwaukie, the homeowner relied upon the legal theory of "inverse condemnation" against the city.

Condemnation is when a governmental agency takes private property for a public purpose. If the homeowner does not like the price offered, then it goes to court. "Inverse condemnation" applies when the government makes no offer to buy, but takes property anyway. Then, the homeowner must sue the government to be paid. One of the questions in Milwaukie case was whether blowing sewage into a house added up to a "taking." Certainly, the homeowner still owned the home.

"Taking" includes more than just dispossessing the homeowner. A "substantial interference with the use and enjoyment of the property is sufficient." The evidence included that Ms. Dunn could not use her furnace for a time, so she had to close off rooms and use space heaters. Hardwood floors might need to be removed and replaced. The sewage damaged the sheet rock in parts of the house, and an appraiser testified that the home lost approximately $100,000 in value. The court held that such evidence is enough for a jury to find a "substantial interference" to require compensation.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.